Opinion
2021-04874
08-26-2021
CAROL L. JONES, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF DONALD J. JONES, DECEASED, JONES-CARROLL, INC., AND SEALAND WASTE LLC, PLAINTIFFS-RESPONDENTS, v. TOWN OF CARROLL AND TOWN BOARD OF TOWN OF CARROLL, DEFENDANTS-APPELLANTS.
ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL), FOR DEFENDANTS-APPELLANTS. BRAUTIGAM & BRAUTIGAM, LLP, FREDONIA (DARYL P. BRAUTIGAM OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS CAROL L. JONES, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF DONALD J. JONES, DECEASED, AND JONES-CARROLL, INC. KNAUF SHAW LLP, ROCHESTER (ALAN J. KNAUF OF COUNSEL), FOR PLAINTIFF-RESPONDENT SEALAND WASTE LLC.
ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
BRAUTIGAM & BRAUTIGAM, LLP, FREDONIA (DARYL P. BRAUTIGAM OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS CAROL L. JONES, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF DONALD J. JONES, DECEASED, AND JONES-CARROLL, INC.
KNAUF SHAW LLP, ROCHESTER (ALAN J. KNAUF OF COUNSEL), FOR PLAINTIFF-RESPONDENT SEALAND WASTE LLC.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, CURRAN, AND DEJOSEPH, JJ.
Appeal from an order of the Supreme Court, Chautauqua County (James H. Dillon, J.), entered June 23, 2020. The order, among other things, denied the cross motion of defendants for summary judgment.
It is hereby ORDERED that the order so appealed from is unanimously affirmed with costs.
Memorandum: The facts and procedural history of this case are set forth in our decisions on the prior appeals (Jones v Town of Carroll, 32 A.D.3d 1216 [4th Dept 2006], lv dismissed 12 N.Y.3d 880 [2009]; Jones v Town of Carroll [appeal No. 1], 57 A.D.3d 1376 [4th Dept 2008], revd 15 N.Y.3d 139 [2010], rearg denied 15 N.Y.3d 820 [2010] [ Jones I ]; Jones v Town of Carroll [appeal No. 2], 57 A.D.3d 1379 [4th Dept 2008] [ Jones II ]; Jones v Town of Carroll, 122 A.D.3d 1234 [4th Dept 2014], lv denied 25 N.Y.3d 910 [2015] [ Jones III ]; Jones v Town of Carroll, 158 A.D.3d 1325 [4th Dept 2018], lv dismissed 31 N.Y.3d 1064 [2018] [ Jones IV ]; Jones v Town of Carroll, 177 A.D.3d 1297 [4th Dept 2019] [ Jones V ]). Here, defendants appeal from an order that, among other things, denied their cross motion for summary judgment seeking dismissal of certain causes of action.
Supreme Court denied defendants' cross motion upon determining, inter alia, that the cross motion was untimely and an improper successive motion for summary judgment. Defendants do not challenge those determinations by the court and thus, having failed to present any argument with respect to those dispositive determinations, defendants are deemed to have abandoned any contentions with respect to the propriety thereof (see Becker-Manning, Inc. v Common Council of City of Utica, 114 A.D.3d 1143, 1143-1144 [4th Dept 2014]; see generally Ciesinski v Town of Aurora, 202 A.D.2d 984, 984 [4th Dept 1994]). Even assuming, arguendo, that defendants have not abandoned on appeal any challenge to those determinations, we conclude that the court properly denied defendants' cross motion for summary judgment as untimely under CPLR 3212 (a) (see Lozzi v Fuller Rd. Mgt. Corp., 175 A.D.3d 1815, 1816 [4th Dept 2019]; Mitchell v City of Geneva, 158 A.D.3d 1169, 1169 [4th Dept 2018]; see generally Brill v City of New York, 2 N.Y.3d 648, 650-654 [2004]) and as an improper successive motion for summary judgment (see Magic Circle Films Intl., LLC v Breon, 192 A.D.3d 1610, 1611-1612 [4th Dept 2021]; Vinar v Litman, 110 A.D.3d 867, 868-869 [2d Dept 2013]). Inasmuch as defendants presented no argument with respect to the court's dispositive determinations, we affirm with costs (see Becker-Manning, Inc., 114 A.D.3d at 1144).