In re City Tunnel No. 3, Stage 2 (Shaft 22B)

267 A.D.2d 382, 700 N.Y.S.2d 222, 1999 N.Y. App. Div. LEXIS 13251

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 20, 1999
• Status: Published

Opinion

—In a condemnation proceeding, the claimants Peter Bournakis, Julia Bournakis, Fourth Avenue Automobile Service, Ltd., and Universal Metal Machine Works, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Scholnick, J.), entered June 16, 1998, as granted the motion of the defendant City of New York to dismiss the consequential fixture claim of Universal Metal Machine Works, Inc., and denied the latter’s cross motion for leave to file a late or amended claim.

Ordered that the appeal by claimants Peter Bournakis, Julia Bournakis, and Fourth Avenue Automobile Service, Ltd., is dismissed, without costs or disbursements, as they are not aggrieved by the order appealed from (see, CPLR 5511); and it is further,

Ordered that the order is affirmed insofar as appealed from by the defendant City of New York, with costs.

We agree with the Supreme Court that the consequential fixture claim filed by Universal Metal Machine Works, Inc. (hereinafter Universal), did not constitute an amendment to its direct claim, and therefore was untimely. The court’s denial of Universal’s motion to file a late or amended claim was proper in light of Universal’s failure to provide a reasonable excuse for not seeking to do so earlier (see, Grandinetti v Metropolitan Transp. Auth., 139 AD2d 619, affd 74 NY2d 785; see also, Tennessee Gas Pipeline Co. v Bontrager Realty, 191 AD2d 1002; Metropolitan Transp. Auth. v Pizzuti, 156 AD2d 546).

Universal’s remaining contentions are without merit. O’Brien, J. P., Altman, Luciano and Smith, JJ., concur.