| West Broadway Funding Assoc. v Friedman |
| 2010 NY Slip Op 04781 [74 AD3d 798] |
| June 1, 2010 |
| Appellate Division, Second Department |
| West Broadway Funding Associates et al., Plaintiffs, and HarrisonEquities, LLC, Respondent, v Gary Friedman et al., Defendants/Third-Party Plaintiffs.Fidelity National Title Insurance Company, Third-Party Defendant-Appellant, et al., Third-PartyDefendants. |
—[*1] Eric W. Berry, New York, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of contract, the third-party defendantFidelity National Title Insurance Company appeals from an amended judgment of the SupremeCourt, Westchester County (Loehr, J.), entered February 5, 2009, which, upon an order of thesame court entered September 30, 2008, granting the motion of the plaintiff Harrison Equities,LLC, among other things, (1) in effect, to dismiss the affirmative defenses of the third-partydefendant Fidelity National Title Insurance Company based on (a) the allegation that HarrisonEquities, LLC, "created, suffered, assumed, or agreed to" the defect in the deed, and (b) theallegation that Harrison Equities, LLC, prejudiced its rights of subrogation by giving certainreleases to John Faracco, JBL Development Corp., Gary Friedman, and Natale Friedman &Segall, LLC, and (2) to preclude from trial (a) evidence concerning releases given by HarrisonEquities to John Faracco, JBL Development Corp., Gary Friedman, and Natale Friedman &Segall, LLC, (b) evidence that Harrison Equities was contributorily negligent, and (c) evidencethat Harrison Equities, LLC, failed to mitigate damages, and upon an order of the same courtentered December 4, 2008, denying its motion for leave to reargue and directing the entry ofjudgment, is in favor of the plaintiff Harrison Equities, LLC, and against it in the principal sumof $530,000.
Ordered that the amended judgment is reversed, on the law, with costs, the motion of theplaintiff Harrison Equities, LLC, is denied, the orders entered September 30, 2008, andDecember 4, 2008, are modified accordingly, and the matter is remitted to the Supreme Court,Westchester County, for trial.
The motion of the plaintiff Harrison Equities, LLC (hereinafter Harrison), was, in effect, anuntimely motion for summary judgment (see Rivera v City of New York, 306 AD2d 456[2003]; Rondout Elec. v Dover Union Free School Dist., 304 AD2d 808 [2003];Marshall v 130 N. Bedford Rd. Mount Kisco Corp., 277 AD2d 432 [2000];Downtown Art Co. v Zimmerman, 232 AD2d 270 [1996]). Accordingly, and in theabsence of any showing of "good cause" for the late filing of such a motion (CPLR [*2]3212 [a]), the Supreme Court should have denied the motion (see generally Brill v City of NewYork, 2 NY3d 648 [2004]).
Harrison's remaining contentions are without merit. Fisher, J.P., Dillon, Dickerson and Eng,JJ., concur.