Opinion
Index No. 151078/20 No. 16197 Case No. 2022-00807
06-23-2022
Max Perez et al., Plaintiffs, v. 76th and Broadway Owner, LLC et al., Defendants-Respondents. 76th and Broadway Owner, LLC et al., Third-Party Plaintiffs-Respondents, v. General Glass & Metal, LLC, Third-Party Defendant-Appellant.
Collins, Fitzpatrick & Schoene, LLP, White Plains (Ralph F. Schoene of counsel), for appellant. Hannum Feretic Prendergast & Merlino, LLC, New York (Adam Oustatcher of counsel), for respondents.
Collins, Fitzpatrick & Schoene, LLP, White Plains (Ralph F. Schoene of counsel), for appellant.
Hannum Feretic Prendergast & Merlino, LLC, New York (Adam Oustatcher of counsel), for respondents.
Before: Manzanet-Daniels, J.P., Webber, Gesmer, Scarpulla, Shulman, JJ.
Order, Supreme Court, New York County (David B. Cohen, J.), entered October 8, 2021, which granted defendants/third-party plaintiffs' motion to strike third-party defendant subcontractor's (General Glass) answer, unanimously affirmed, with costs.
In this personal injury action arising from a workplace accident (see generally 76th & Broadway Owner LLC v Consolidated Edison Co. of N.Y. Inc., 160 A.D.3d 447, 447 [1st Dept 2018]), Supreme Court properly struck the answer, as General Glass, "the party against whom collateral estoppel is sought to be invoked[,]... appeared in the prior action or proceeding and has, by deliberate action, refused to defend or litigate the charge or allegation that is the subject of the preclusion request," namely, claims for contractual indemnification and failure to procure insurance (Matter of Abady, 22 A.D.3d 71, 83-84 [1st Dept 2005]). Specifically, the decision in the prior action "established [General Glass's] failure to comply with four court orders requiring it to appear for deposition," and "indicate[d] that its president wilfully refused to comply with the court's mandates" (76th & Broadway Owner, LLC v Consolidated Edison Co. of N.Y., Inc., 168 A.D.3d 621, 622 [1st Dept 2019]). As such, General Glass "therein had a full and fair opportunity to fully litigate the underlying merits... but affirmatively chose not to by [its] own failure to comply with court orders" (Kanat v Ochsner, 301 A.D.2d 456, 458 [1st Dept 2003]; accord Lodge v Fraternidad Realty Corp., 205 A.D.3d 453 [1st Dept 2022]; see also Buechel v Bain, 97 N.Y.2d 295, 303-304 [2001], cert denied 535 U.S. 1096 [2002]).
We decline to consider General Glass' argument, raised for the first time on appeal, that the anti-subrogation rule bars defendants from seeking to recover from it, as it is "not [a] purely legal argument[]" (27 W. 72nd St. Note Buyer LLC v Terzi, 194 A.D.3d 630, 631 [1st Dept 2021]).
We have considered General Glass' remaining contentions and find them unavailing.