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Nicoletti Gonson Spinner & Owen LLP v. York Claims Service

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


May 28, 2009

NICOLETTI GONSON SPINNER & OWEN LLP (FORMERLY KNOWN AS NICOLETTI GONSON & SPINNER), PLAINTIFF-RESPONDENT,
v.
YORK CLAIMS SERVICE, INC., DEFENDANT/THIRD-PARTY PLAINTIFF-APPELLANT, COLONIAL COOPERATIVE INSURANCE COMPANY, THIRD-PARTY DEFENDANT-RESPONDENT, STEPHEN MUEHLBAUER, THIRD-PARTY DEFENDANT.

Appeals from judgment, Supreme Court, New York County (Emily Jane Goodman, J.), entered February 26, 2008, awarding plaintiff fees totaling the principal amount of $142,101.05, and from order, same court and Justice, entered July 31, 2008, to the extent it denied defendant's motion to renew, unanimously dismissed as moot, with costs in favor of plaintiff and third-party defendants. Appeal from order, same court and Justice, entered October 18, 2007, which, inter alia, granted plaintiff's motion for summary judgment on its causes of action for breach of contract and account stated, granted third-party defendants' cross motions for summary judgment dismissing the third-party complaint and denied third-party plaintiff's cross motion for summary judgment in the third-party action, unanimously dismissed, without costs, as moot and as subsumed in the appeal from the judgment.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Mazzarelli, Buckley, Renwick, Abdus-Salaam, JJ.

604180/06 590030/07

In light of third-party defendant Colonial's satisfaction of the judgment, defendant York lacks a significant ground for vindication on appeal with regard to its liability for fees owed to plaintiff or its right to indemnification from Colonial. Were we to address the merits, we would find that plaintiff submitted its bills and York failed to raise any timely protest (see Tunick v Shaw, 45 AD3d 145, 149 [2007], lv dismissed 10 NY3d 930 [2008]), that plaintiff's entitlement to its fees was not dependent on the dispute between York and Colonial, that York's defense was devoid of factual support, and that neither discovery nor the purportedly new evidence submitted on renewal would have changed the prior determination (see 212 Inv. Corp. v Kaplan, 44 AD3d 332, 333 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090528

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