Opinion
820
August 28, 2003.
Order, Supreme Court, New York County (Diane Lebedeff, J.), entered August 2, 2002, which insofar as it granted defendant/third-party plaintiff's motion to vacate a default judgment against it and denied defendant's motion for summary judgment and a conditional order of contractual indemnification against third-party plaintiff Depository Trust Clearing Corporation, unanimously affirmed, without costs. This action and Security Ins. Co. of Hartford v. Interior Construction Corp. are to be consolidated and remanded for further proceedings.
Andrea M. Alonso, for defendant-respondent.
Richard H. Bakalor, for defendant-appellant.
Andrea M. Alonso, for third-party plaintiff-respondent.
Before: Buckley, P.J., Rosenberger, Ellerin, Lerner, JJ.
Under the circumstances of this case, where the movant subsequently became aware of relevant information regarding New Water's involvement in the incident and in light of the pendency of a companion case involving overlapping and identical issues (see Appeal No. 819), the court properly vacated the default. To simplify further proceedings herein, we nostra sponte order that the two matters be consolidated.
The court in vacating the default herein made no substantive determinations with respect to any of the claims asserted. While we have concluded in the companion appeal that New Water failed to fulfill its burden on its motion seeking summary judgment on the indemnification issue, the question of the viability of Depository's somewhat amorphous cross claims and counterclaims should, in the first instance, be decided at nisi prius.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.