Colon v. City of New York

Appellate Division of the Supreme Court of New York

Colon v. City of New York

15 A.D.3d 173, 788 N.Y.S.2d 606, 2005 N.Y. App. Div. LEXIS 962

Appellate Division of the Supreme Court of the State of New York·Decided February 3, 2005·Published·Cited by 3 cases

Opinion

Order, Supreme Court, Bronx County (Barry Salman, J.), entered July 30, 2004, which denied the motion of Achilles Construction Co. and cross motion of John Civetta & Sons, Inc. for, inter alia, summary judgment dismissing, as against the movant, the third-party complaint of Kiska Construction Corp., USA, unanimously affirmed, without costs.

Supreme Court properly denied Achilles’s motion since the evidence it presented did not suffice to eliminate all factual issues as to whether it was responsible for the accumulation of water that allegedly caused plaintiffs accident (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Although Civetta’s cross motion was similarly deficient, we affirm its denial because it was untimely, having been made more than 120 days after the filing of plaintiffs note of issue, and without a showing of “good cause” for the delay (see Brill v City of New York, 2 NY3d 648 [2004]).

We have reviewed appellants’ remaining arguments and find them unavailing. Concur — Buckley, PJ., Tom, Marlow, Gonzalez and Catterson, JJ.

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Order, Supreme Court, Bronx County (Barry Salman, J.), entered July 30, 2004, which denied the motion of Achilles Construction Co. and cross motion of John Civetta & Sons, Inc. for, inter alia, summary judgment dismissing, as against the movant, the third-party complaint of Kiska Construction Corp., USA, unanimously affirmed, without costs.

Supreme Court properly denied Achilles’s motion since the evidence it presented did not suffice to eliminate all factual issues as to whether it was responsible for the accumulation of water that allegedly caused plaintiffs accident (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Although Civetta’s cross motion was similarly deficient, we affirm its denial because it was untimely, having been made more than 120 days after the filing of plaintiffs note of issue, and without a showing of “good cause” for the delay (see Brill v City of New York, 2 NY3d 648 [2004]).

We have reviewed appellants’ remaining arguments and find them unavailing. Concur — Buckley, PJ., Tom, Marlow, Gonzalez and Catterson, JJ.

Colon v. City of New York, 15 A.D.3d 173, 788 N.Y.S.2d 606, 2005 N.Y. App. Div. LEXIS 962 (N.Y. Ct. App. 2005).

Pincite

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Opinion

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