Luciano v H.R.H. Constr., LLC

Luciano v H.R.H. Constr., LLC 2011 NY Slip Op 08305 Decided on November 17, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 17, 2011
Mazzarelli, J.P., Sweeny, Moskowitz, Acosta, Abdus-Salaam, JJ.
6100 21067/03

[*1]Hector Luciano, Plaintiff,

v

H.R.H. Construction, LLC, et al., Defendants. [And Third Party Actions] _ _ _ _ _ Mometal Inc., et al., Third Third-Party Plaintiffs-Respondents, Admiral Insurance Company, Third Third-Party Defendant-Appellant.




Kral, Clerkin, Redmond, Ryan, Perry & Van Etten, LLP,
Melville (Michael G. Walker of counsel), for appellant.
Haworth Coleman & Gerstman, LLC, New York (Nora
Coleman of counsel), for respondents.

Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered June 14, 2010, which, in this personal injury action arising from a construction accident, to the extent appealed from as limited by the briefs, denied appellant insurer's motion for summary judgment dismissing the third third-party complaint, unanimously affirmed, without costs.

Supreme Court properly denied the motion as untimely. Absent other directive from the court, summary judgment motions should be made no later than 120 days "after the filing of the note of issue" (CPLR 3212[a] [emphasis added]). It is undisputed that the insurer did not move for summary judgment until two years after plaintiff filed the note of issue. Although the insurer was not served with the note of issue, it does not deny that it knew about its filing (cf. McFadden v 530 Fifth Ave. RPS III Assoc., LP, 28 AD3d 202, 202-203 [2006]). Accordingly, the motion court correctly required "a satisfactory explanation for the untimeliness" and properly determined that no such explanation was given (Brill v City of New York, 2 NY3d 648, 652 [2004]).

We reject the insurer's argument, raised for the first time on appeal, that it did not believe that the 120-day period had begun to run, because a note of issue had been filed only in the main action, not in the "severed" third third-party action. By order entered January 17, 2007, the court (Lucindo Suarez, J.) granted the insurer's motion to sever the third third-party claims only to the extent of severing the claims for trial on the condition that they were not "disposed of prior [*2]thereto." Accordingly, as the court explicitly stated in its order, the actions remained consolidated through discovery. Thus, plaintiff's filing of the note of issue started the running of the 120-day period, and the insurer's "failure to appreciate that its motion was due . . . is no more satisfactory than a perfunctory claim of law office failure" (Giudice v Green 292 Madison, LLC, 50 AD3d 506, 506 [2008][internal quotation marks omitted]).

Given the foregoing, we need not reach the merits of the motion.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 17, 2011

CLERK