Rubeo v. National Grange Mutual Insurance

255 A.D.2d 306, 678 N.Y.S.2d 790, 1998 N.Y. App. Div. LEXIS 11615

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 2, 1998
• Status: Published

Opinion

—In an action against the defendant National Grange Mutual Insurance Co. to enforce an unsatisfied judgment for damages arising from the breach of a construction contract entered into October 19, 1993, upon the default of Bedford Construction Management Corp., the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (DiBlasi, J.), entered August 22, 1997, as, upon reargument, adhered to the prior determination in an order entered May 15, 1997, which granted the motion of National Grange Mutual Insurance Co. for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the appeal is dismissed, with costs.

The plaintiff is barred from raising the issue of the timeliness of the insurance carrier’s disclaimer of coverage on this appeal. The issue could have been raised in the prior appeal from the order dated May 15, 1997, which was dismissed as abandoned (see, CPLR 5501; Bray v Cox, 38 NY2d 350, 353; Marmarou v Spartan Diner, 247 AD2d 593; Kimble v Caraballo, 243 AD2d 610; Brosnan v Behette, 243 AD2d 524). Rosenblatt, J. P., Miller, Goldstein and McGinity, JJ., concur.