Consolidated Edison Co. of New York, Inc. v. Power Authority

Appellate Division of the Supreme Court of New York

Consolidated Edison Co. of New York, Inc. v. Power Authority

180 A.D.2d 615

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 27, 1992

StatusPublished

This text of 180 A.D.2d 615 (Consolidated Edison Co. of New York, Inc. v. Power Authority) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Consolidated Edison Co. of New York, Inc. v. Power Authority, 180 A.D.2d 615 (N.Y. Ct. App. 1992).

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Opinion

Order and judgment (one paper), Supreme Court, New York County (Herman Cahn, J.), entered January 4, 1991, which granted defendant City of New York’s motion for partial summary judgment on its cross claims against defendants Crabhouse of Douglaston, Inc. and Leisure Management Corp. on the issue of liability only, denied an immediate assessment of damages as premature, and denied the cross-motions of defendants Crabhouse and Leisure Management for summary judgment dismissing defendant City’s cross claims against them, unanimously modified, on the law, to grant the cross-motion to the extent of dismissing so much of the cross-claims as seeks indemnification for payment prior to January 15, 1981, and otherwise affirmed, without costs.

The City’s cross-claims are to be deemed interposed as of January 15, 1987, when the complaint was served (CPLR 203 [c]; Imperial Outfitters to Large Men v Genesco, Inc., 95 AD2d [616]*616755, affd 68 NY2d 732). Thus, as the City concedes, any attempt by it to recoup from Crabhouse and Leisure, in indemnification, payments made on electricity bills prior to January 15, 1981 is barred by the six-year Statute of Limitations (CPLR 213).

Otherwise, the court properly awarded partial summary judgment to the City, there being no evidence from which a clear manifestation of intent by the City to relinquish its contractual right can be reasonably inferred (Frank Corp. v Federal Ins. Co., 70 NY2d 966, 968). Nor was any evidence adduced that the City was aware that charges for the electricity consumption in issue represented usage by Crabhouse. The City’s request for an assessment of damages is based upon facts developed subsequent to the order and judgment appealed from, and should be addressed to the IAS court in a motion pursuant to CPLR 2221. Concur — Milonas, J. P., Kupferman, Ross and Smith, JJ.

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Order and judgment (one paper), Supreme Court, New York County (Herman Cahn, J.), entered January 4, 1991, which granted defendant City of New York’s motion for partial summary judgment on its cross claims against defendants Crabhouse of Douglaston, Inc. and Leisure Management Corp. on the issue of liability only, denied an immediate assessment of damages as premature, and denied the cross-motions of defendants Crabhouse and Leisure Management for summary judgment dismissing defendant City’s cross claims against them, unanimously modified, on the law, to grant the cross-motion to the extent of dismissing so much of the cross-claims as seeks indemnification for payment prior to January 15, 1981, and otherwise affirmed, without costs.

The City’s cross-claims are to be deemed interposed as of January 15, 1987, when the complaint was served (CPLR 203 [c]; Imperial Outfitters to Large Men v Genesco, Inc., 95 AD2d [616]*616755, affd 68 NY2d 732). Thus, as the City concedes, any attempt by it to recoup from Crabhouse and Leisure, in indemnification, payments made on electricity bills prior to January 15, 1981 is barred by the six-year Statute of Limitations (CPLR 213).

Otherwise, the court properly awarded partial summary judgment to the City, there being no evidence from which a clear manifestation of intent by the City to relinquish its contractual right can be reasonably inferred (Frank Corp. v Federal Ins. Co., 70 NY2d 966, 968). Nor was any evidence adduced that the City was aware that charges for the electricity consumption in issue represented usage by Crabhouse. The City’s request for an assessment of damages is based upon facts developed subsequent to the order and judgment appealed from, and should be addressed to the IAS court in a motion pursuant to CPLR 2221. Concur — Milonas, J. P., Kupferman, Ross and Smith, JJ.

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180 A.D.2d 615, Counsel Stack Legal Research, https://law.counselstack.com/opinion/consolidated-edison-co-of-new-york-inc-v-power-authority-nyappdiv-1992.

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