Cohoes Realty Associates v. Lexington Insurance

266 A.D.2d 11, 698 N.Y.S.2d 217, 1999 N.Y. App. Div. LEXIS 11190

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 4, 1999
• Status: Published

Opinion

—Order, Supreme Court, New York County (Ira Gammerman, J.), entered February 8, 1999, which granted the motion of plaintiff Lana Realty Co. for renewal of its motion for summary judgment, and, upon renewal, granted plaintiff partial summary judgment against defendant Lexington Insurance Company on its third cause of action, and which granted the cross motion of third-party defendant New England Risk Specialists, Inc. (NERS) to dismiss the third-party complaint, unanimously reversed, on the law, without costs, the motion and cross motion both denied and the matter remanded for further proceedings.

It was an improvident exercise of Trial Term’s discretion to grant renewal where this Court had affirmed its previous denial of summary judgment to plaintiffs and, upon a search of the record, granted summary judgment in favor of Lexington (250 AD2d 420, lv dismissed 92 NY2d 1001), particularly where plaintiffs failed to demonstrate a justifiable excuse for not pursuing discovery against NERS more expeditiously (see, Matter of Beiny, 132 AD2d 190, 209-210, lv dismissed 71 NY2d 994). Since the grant of summary judgment to plaintiff was the sole basis for dismissing the third-party action, such dismissal is vacated and the third-party action reinstated.

Reargument granted and upon reargument, the unpublished decision and order of this Court entered on July 15, 1999 (Appeal No. 1568) is recalled and vacated and a new decision and order substituted therefor, and motion otherwise denied. Concur — Nardelli, J. P., Williams, Tom, Wallach and Andrias, JJ.