Great Northern Insurance v. Interior Construction Corp.

307 A.D.2d 878, 763 N.Y.S.2d 750, 2003 N.Y. App. Div. LEXIS 9059

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 28, 2003
• Status: Published

Opinion

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered August 2, 2002, which insofar as it granted defendant and third-party plaintiffs motion to vacate a default judgment against it and denied defendant’s motion for summary judgment and a conditional order of contractual indemnification against third-party plaintiff Depository Trust & Clearing Corporation, unanimously affirmed, without costs. This action and Security Insurance Company of Hartford v Interior Construction Corporation are to be consolidated and remanded for further proceedings.

Under the circumstances of this case, where the movant subsequently became aware of relevant information regarding New Water’s involvement in the incident and in light of the pendency of a companion case involving overlapping and identical issues (see Security Ins. Co. of Hartford v Interior Constr. Corp., 307 AD2d 877 [2003]), the court properly vacated the default. To simplify further proceedings herein, we nostra sponte order that the two matters-be consolidated.

The court in vacating the default herein made no substantive determinations with respect to any of the claims asserted. While we have concluded in the companion appeal that New Water failed to fulfill its burden on its motion seeking summary judgment on the indemnification issue, the question of the viability of Depository’s somewhat amorphous cross claims and counterclaims should, in the first instance, be decided at nisi prius. Concur — Buckley, P.J., Rosenberger, Ellerin and Lerner, JJ.