Opinion
8260- 8261 Index 452935/14
01-31-2019
76TH AND BROADWAY, LLC, et al., Plaintiffs-Respondents, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant, General Glass & Metal, LLC, Defendant-Appellant. [And a Third-Party Action]
Sweetbaum & Sweetbaum, Lake Success (Marshall D. Sweetbaum of counsel), for appellant. Hannum Feretic Prendergast & Merlino, LLC, New York (Sean M. Prendergast of counsel), for respondents.
Sweetbaum & Sweetbaum, Lake Success (Marshall D. Sweetbaum of counsel), for appellant.
Hannum Feretic Prendergast & Merlino, LLC, New York (Sean M. Prendergast of counsel), for respondents.
Richter, J.P., Manzanet–Daniels, Tom, Kahn, Singh, JJ.
Judgment, Supreme Court, New York County (Gerald Lebovits, J.), entered March 14, 2018, dismissing third-party defendant General Glass & Metal LLC's (General Glass) third-party answer, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered December 29, 2017, which, upon granting General Glass's CPLR 2221(a) motion to reconsider a prior order granting third-party plaintiffs' motion to strike the third-party answer, and denying dismissal of the third-party complaint, adhered to its original decision, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Although denominated a motion to "modify," General Glass's motion below actually sought reargument (see CPLR 2221[a] ; Foley v. Roche, 68 A.D.2d 558, 567–568, 418 N.Y.S.2d 588 [1st Dept. 1979] ). While the denial of a motion to reargue is generally not appealable, the motion court addressed the merits of the motion at oral argument. Accordingly, we treat the order as having granted reargument, and adhering to the original decision, making it appealable (see Lipsky v. Manhattan Plaza, Inc., 103 A.D.3d 418, 959 N.Y.S.2d 181 [1st Dept. 2013] ; Foley v. City of New York, 43 A.D.3d 702, 703, 842 N.Y.S.2d 399 [1st Dept. 2007] ).
Supreme Court providently exercised its discretion in striking General Glass's answer, as the record established its failure to comply with four court orders requiring it to appear for deposition (see McHugh v. City of New York, 150 A.D.3d 561, 562, 55 N.Y.S.3d 29 [1st Dept. 2017] ). Contrary to General Glass's argument, the record does not establish that it was unable to locate a witness with knowledge, but rather indicates that its president wilfully refused to comply with the court's mandates.
The court also properly adhered to its decision to deny General Glass's motion for summary dismissal of the third-party complaint, as the Workers' Compensation Law does not preclude third-party plaintiffs from seeking to enforce contractually-based obligations to indemnify and to provide insurance coverage (see Spiegler v. Gerken Bldg. Corp., 35 A.D.3d 715, 717, 826 N.Y.S.2d 674 [2d Dept. 2006] ).
We have considered General Glass's remaining arguments, and find them unavailing.