Sierra v. Ogden Cap Properties, LLC

135 A.D.3d 654, 24 N.Y.S.3d 604

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 28, 2016
• Docket: 56 103927/11 590040/12 590674/12
• Status: Published

Opinion

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered July 14, 2014, which denied defendant/third-party defendant Lenox Hill Hospital’s * motion for summary judgment dismissing the complaint and all other claims against it and its application for leave to submit a new dispositive motion following the completion of discovery, unanimously affirmed, without costs.

The motion court correctly found that Lenox Hill failed to establish prima facie that its sublease had expired before plaintiff’s 2009 accident. While the initial term of the sublease expired in 2006, the sublease provided for automatic renewals, and indicated that it was co-terminus with the within-referenced Health Care Services Agreement between Lenox Hill and codefendant Health Insurance Plan of Greater New York. In support of its motion, Lenox Hill submitted the sublease and an affidavit asserting that the Health Care Services Agreement was terminated on July 31, 2006. However, it did not submit the Health Care Services Agreement itself. The motion court correctly determined that that omission was fatal to the motion.

We decline to consider Lenox Hill’s argument as to standing, which it raised for the first time in its reply brief. We have considered Lenox Hill’s remaining arguments and find them unavailing. Concur — Tom, J.P., Sweeny, Gische and Kapnick, JJ.

* Lenox Hill Hospital, among other parties, was named as a defendant in the second amended complaint. It was omitted as a defendant from the consolidated caption due to a clerical error.