New York Supreme and/or Appellate Courts Appellate Division, First Department
June 28, 2012
WILLIAM C. SAMUELS, PLAINTIFF-APPELLANT,
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT, ---- ROADWAY CONTRACTING, INC., THIRD-PARTY DEFENDANT-RESPONDENT. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., SECOND THIRD-PARTY PLAINTIFF, ---- ALEX R. FRADKOFF, ETC., ET AL., SECOND THIRD-PARTY DEFENDANTS, THEODORE WAGNER PLUMBING AND HEATING CORP., SECOND THIRD-PARTY DEFENDANT-RESPONDENT.
Samuels v Consolidated Edison Co. of N.Y., Inc.
Decided on June 28, 2012
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.
Saxe, J.P., Friedman, Renwick, DeGrasse, Richter, JJ.
Order, Supreme Court, New York County (Judith Gische, J.), entered June 11, 2010, which granted defendant Consolidated Edison Company of New York's (Con Ed) oral application to dismiss plaintiff's action against it, unanimously reversed, on the law, without costs, and the application denied. Appeal from the so-ordered transcript, same court and Justice, entered September 7, 2010, unanimously dismissed, without costs, as moot.
The court improperly heard Con Ed's pre-trial oral application to dismiss plaintiff's complaint. The motion was in substance a motion for summary judgment and as such was untimely. CPLR 3212 [a]; Brill v City of New York 2 NY3d 648 (2004). In addition the motion should have been made on papers.
M-924 & M-964 & M-1502 -William C. Samuels v Consolidate Edison
Company of New York, Inc. Motions to dismiss appeal denied and cross motion to deem the appeal timely granted.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 28, 2012
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