Nicoletti Gonson Spinner & Owen LLP v. York Claims Service, Inc.

62 A.D.3d 614, 879 N.Y.S.2d 447

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 28, 2009
• Status: Published

Opinion

Appeals from judgment, Supreme Court, New York County (Emily Jane Goodman, J.), entered February 26, 2008, awarding plaintiff fees totaling the principal amount of $142,101.05, and from order, same court and Justice, entered July 31, 2008, to the extent it denied defendant’s motion to renew, unanimously dismissed as moot, with costs in favor of plaintiff and third-party defendants. Appeal from order, same court and Justice, entered October 18, 2007, which, inter alia, granted plaintiffs motion for summary judgment on its causes of action for breach of contract and account stated, granted third-party defendants’ cross motions for summary judgment dismissing the third-party complaint and denied third-party plaintiffs cross motion for summary judgment in the third-party action, unanimously dismissed, without costs, as moot and as subsumed in the appeal from the judgment.

In light of third-party defendant Colonial’s satisfaction of the judgment, defendant York lacks a significant ground for vindication on appeal with regard to its liability for fees owed to plaintiff or its right to indemnification from Colonial. Were we to address the merits, we would find that plaintiff submitted its bills and York failed to raise any timely protest (see Tunick v Shaw, 45 AD3d 145, 149 [2007], lv dismissed 10 NY3d 930 [2008]), that plaintiff’s entitlement to its fees was not dependent on the dispute between York and Colonial, that York’s defense was devoid of factual support, and that neither discovery nor the purportedly new evidence submitted on renewal would have changed the prior determination (see 212 Inv. Corp. v Kaplan, 44 AD3d 332, 333 [2007]). Concur—Gonzalez, P.J., Mazzarelli, Buckley, Renwick and Abdus-Salaam, JJ.