Opinion
October 29, 1998
Appeal from the Supreme Court, New York County (Sheila Abdus-Salaam, J.).
Assuming arguendo the allegation in the answers of "plaintiff's culpable conduct" was insufficient to raise a "recalcitrant worker" defense ( cf, Stolt v. General Foods Corp., 51 N.Y.2d 918), we nevertheless affirm, on the ground that plaintiffs waived objection to any such pleading defect by addressing the recalcitrant worker defense at length on the merits on the prior motion for summary judgment ( see, 236 A.D.2d 311). Under the circumstances, plaintiffs' present motion was an improper second summary judgment motion unjustified by any newly discovered evidence or other sufficient cause ( compare, National Enters. Corp. v. Dechert Price Rhoads, 246 A.D.2d 481, 482 with Boston Concessions Group v. Criterion Ctr. Corp., 250 A.D.2d 435). Plaintiffs' claimed unawareness of the recalcitrant worker defense at the time they cut off further disclosure by filing a note of issue is not a "`"special, unusual or extraordinary circumstance"'" warranting post-note-of-issue disclosure ( Grant v. Wainer, 179 A.D.2d 364, 365). Severance of the claim for contribution and indemnification was properly denied in the interest of judicial economy ( see, Huttick v. Biograph Realty Corp., 37 A.D.2d 597).
Concur — Rosenberger, J. P., Nardelli, Mazzarelli, Andrias and Saxe, JJ.