| Chu v Pan |
| 2010 NY Slip Op 03265 [72 AD3d 866] |
| April 20, 2010 |
| Appellate Division, Second Department |
| Wendy Chu et al., Plaintiffs, v Calvin Q. Pan et al.,Defendants/Third-Party Plaintiffs-Respondents. Construction Contractors, LLC, Third-PartyDefendant; 1st Class Wrecking Corp., Third-Party Defendant-Appellant. (And AnotherTitle.) |
—[*1] Law Office of Kramer & Shapiro, P.C., Kew Gardens, N.Y. (Lisa D. Levine-Shapiro ofcounsel), for defendants/third-party plaintiffs-respondents.
In an action, inter alia, to recover damages for injury to property and for trespass, in which ajudgment was entered on February 1, 2008, in favor of the defendants/third-party plaintiffs andagainst the third-party defendant 1st Class Wrecking Corp., in the principal sum of $195,000upon its failure to appear for trial, the third-party defendant 1st Class Wrecking Corp. appealsfrom (1) an order of the Supreme Court, Queens County (Rosengarten, J.), dated February 19,2009, (2) an order of the same court dated April 13, 2009, which denied its motion to vacate thejudgment, and (3) so much of an order of the same court dated October 5, 2009, as denied thatbranch of its motion which was pursuant to CPLR 5015 to vacate the judgment.
Ordered that the appeal from the order dated February 19, 2009, is dismissed as abandoned;and it is further,
Ordered that the order dated April 13, 2009, is affirmed; and it is further,
Ordered that the order dated October 5, 2009, is affirmed insofar as appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the defendants third-party plaintiffs.
The third-party defendant 1st Class Wrecking Corp. (hereinafter 1st Class) failed to set fortha reasonable excuse for its failure to appear at trial or a meritorious defense to the third-partyaction. Thus, the Supreme Court did not improvidently exercise its discretion in denying themotion by 1st Class to vacate the judgment against it and in favor of the defendants third-partyplaintiffs in the third-party action (see CPLR 5015 [a] [1]; White v Incorporated Vil. ofHempstead, 41 AD3d 709, 710 [2007]; Mjahdi v Maguire, 21 AD3d 1067 [2005]; Hegarty v Ballee, 18 AD3d 706[2005]). Although [*2]1st Class entered into a pretrial settlementwith the plaintiffs in the main action, that settlement was obtained without the consent of thedefendants/third-party plaintiffs (hereinafter collectively Pan). Moreover, Pan did not release 1stClass from any liability in the third-party action. Since Pan sought indemnification from 1stClass in the third-party action, and, as 1st Class correctly concedes, General Obligations Law§ 15-108 does not preclude indemnification claims, it was not reasonable for 1st Class tochoose not to appear at trial (see CPLR 5015 [a] [1]; Nowell v NYU Med. Ctr., 55 AD3d 573 [2008]; Francis v Long Is. Coll. Hosp., 45AD3d 529 [2007]). Further, 1st Class failed to set forth a meritorious defense to thethird-party action. As the owner of the property upon which the excavation work occurred, Panis vicariously liable to the plaintiffs for torts committed by 1st Class, the subcontractor thatperformed the excavation work. The potential liability of 1st Class to Pan is grounded in thisimplied indemnification (see Rogers v Dorchester Assoc., 32 NY2d 553, 562-563[1973]). Therefore, the pretrial settlement with the plaintiffs does not require dismissal of thethird-party action pursuant to General Obligations Law § 15-108 (see Glaser vFortunoff of Westbury Corp., 71 NY2d 643, 645-646 [1988]; Rosado v Proctor &Schwartz, 66 NY2d 21, 24 [1985]; Brazell v Wells Fargo Home Mtge., Inc., 42 AD3d 409, 410[2007]).
Since 1st Class raises no argument in its briefs regarding its appeal from the order datedFebruary 19, 2009, we must dismiss its appeal from that order as abandoned (see Matter ofLevel 3 Communications, LLC v DeBellis, 72 AD3d 164, 180-181 [2010]; Cambry v Lincoln Gardens, 50 AD3d1081, 1084 [2008]; Ellner vSchwed, 48 AD3d 739 [2008]; DiCarlo v City of New York, 286 AD2d 363,365 [2001]).
The remaining contentions of 1st Class are without merit. Fisher, J.P., Leventhal, Belen andSgroi, JJ., concur.