| Kitkas v Windsor Place Corp. |
| 2008 NY Slip Op 02114 [49 AD3d 607] |
| March 11, 2008 |
| Appellate Division, Second Department |
| Nikolaos Kitkas, Respondent, v Windsor Place Corp.,Defendant and Third-Party Plaintiff-Respondent and Third Third-Party Plaintiff-Respondent, etal., Defendants. T & G Contracting Corp., Third-Party Defendant and Second Third-PartyPlaintiff-Respondent; Boca Electric Corp., Second Third-Party Defendant and Third Third-PartyDefendant-Appellant. |
—[*1] Lawrence Perry Biondi, Garden City, N.Y. (Lisa M. Comeau of counsel), forplaintiff-respondent.
In an action to recover damages for personal injuries, the second third-party defendant/thirdthird-party defendant Boca Electric Corp. appeals from an order of the Supreme Court, QueensCounty (Nelson, J.), entered December 14, 2006, which denied, as untimely, its motion forsummary judgment, in effect, dismissing all causes of action for contribution and common-lawindemnification asserted against it.
Ordered that the order is reversed, on the law, with one bill of costs payable by therespondents, and the matter is remitted to the Supreme Court, Queens County, for adetermination on the merits of the motion of the second third-party defendant/third third-partydefendant Boca Electric Corp. for summary judgment, in effect, dismissing all causes of actionfor contribution and common law indemnification asserted against it.
"A motion on notice is made when a notice of the motion is served" (CPLR 2211; seeRusso [*2]v Eveco Dev. Corp. 256 AD2d 566 [1998]; Rivera v Glen Oaks Vil. Owners, Inc.,29 AD3d 560, 561 [2006]). Thus, contrary to the conclusion reached by the Supreme Court,the initial motion for summary judgment made by the second third-party defendant/thirdthird-party defendant Boca Electric Corp. (hereinafter Boca) was timely when it was served onall opposing counsel by mail on December 16, 2005 (see CPLR 2103 [b] [2]; see alsoWeinstein-Korn-Miller NY Civ Prac ¶ 2211.07). Boca's subsequent service of anamended notice of motion, in order to schedule the return of the motion on a date permitted bythe Supreme Court's rules of practice, did not render the motion untimely (see Rivera v GlenOaks Vil. Owners, Inc., 29 AD3d at 562). Accordingly, we remit the matter to the SupremeCourt, Queens County, to determine Boca's motion on the merits. Spolzino, J.P., Santucci,Angiolillo and Carni, JJ., concur.