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N.F. Gozo Corp v. Gene Kiselman

December 7, 2012

N.F. GOZO CORP.,
APPELLANT,
v.
GENE KISELMAN, GENE TSIRKIN AND 2500 CONEY ISLAND AVENUE ASSOCIATES, LLC,
DEFENDANTS,
AND WASHINGTON MUTUAL BANK,
RESPONDENT.



Appeals from orders of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered January 7, 2010 and April 23, 2010, respectively.

N.F. Gozo Corp. v Kiselman

Appellate Term, Second Department

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 printed Miscellaneous Reports.

Decided on December 7, 2012

PRESENT: RIOS, J.P., ALIOTTA and SOLOMON, JJ

The order entered January 7, 2010, insofar as appealed from, granted the branches of a motion by J.P. Morgan Chase Bank, N.A., acquirer of certain assets and liabilities of Washington Mutual Bank from the Federal Deposit Insurance Corporation, seeking summary judgment dismissing so much of the complaint as was asserted against defendant Washington Mutual Bank and indemnification against defendant 2500 Coney Island Avenue Associates, LLC. The order entered April 23, 2010, insofar as appealed from, denied the branch of plaintiff's motion seeking leave to amend the complaint, and, upon granting the branch of plaintiff's motion seeking leave to reargue its opposition to the prior motion, modified the prior order only to the extent of providing that the branch of the motion by J.P. Morgan Chase Bank, N.A. seeking a judgment of indemnification against 2500 Coney Island Avenue Associates, LLC was granted on default.

ORDERED that the appeal from the order entered January 7, 2010 is dismissed as that order was superseded by the order entered April 23, 2010; and it is further,

ORDERED that so much of the appeal as is from the portion of the order entered April 23, 2010 that modified the prior order only to the extent of providing that the branch of the motion by J.P. Morgan Chase Bank, N.A. seeking a judgment of indemnification against defendant 2500 Coney Island Avenue Associates, LLC was granted on default is dismissed on the ground that plaintiff is not aggrieved by that portion of the order; and it is further,

ORDERED that the order entered April 23, 2010, insofar as reviewed, is affirmed, without costs.

Plaintiff brought this action against defendants for breach of contract and to foreclose a mechanic's lien. Plaintiff alleged in the complaint that it had been hired by defendants to supply and install "stone blend," and that it was owed $13,500 for such goods and services. J.P. Morgan Chase Bank, N.A., as acquirer of certain assets and liabilities of Washington Mutual Bank from the Federal Deposit Insurance Corporation acting as receiver (Chase), moved for summary judgment dismissing so much of the complaint as was asserted against Washington Mutual Bank and for a judgment of indemnification against defendant 2500 Coney Island Avenue Associates, LLC (2500 Coney Island). In support of the motion, Chase alleged that Washington Mutual Bank had leased office space and the adjoining parking lot at 2500 Coney Island Avenue, Brooklyn, NY from defendant 2500 Coney Island. Chase further alleged that plaintiff had been hired by 2500 Coney Island to perform construction work on the parking lot leased by Washington Mutual Bank and that Washington Mutual Bank was not a party to the construction contract between plaintiff and 2500 Coney Island.

In opposition to the motion, plaintiff's attorney alleged that Washington Mutual Bank is a third-party beneficiary of the contract between plaintiff and 2500 Coney Island since Washington Mutual Bank leased the parking lot from 2500 Coney Island and, thus, it stood to benefit from the work performed by plaintiff. In addition, the lease between Washington Mutual Bank and 2500 Coney Island contained a provision giving the bank exclusive use of the parking lot and the right to an abatement if 2500 Coney Island failed to fulfill its obligations under the lease. Plaintiff's counsel also alleged that Chase, as a successor to Washington Mutual Bank, is a necessary party to this action as it may be the only viable resource for compensation if the other defendants fail to show up for trial or end up judgment proof.

By order entered January 7, 2010, the Civil Court granted Chase's motion for summary judgment and for a judgment of indemnification against 2500 Coney Island.

Thereafter, plaintiff moved for leave to reargue its opposition to the prior motion and to amend the complaint. Plaintiff's attorney alleged that, based upon a valid contract that plaintiff had with 2500 Coney Island, the fact that Washington Mutual Bank was the intended beneficiary of the work performed thereunder and that the lease between Washington Mutual Bank and 2500 Coney Island provided the bank with an exclusive right to use the parking lot along with the right ...


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