WEST BROADWAY v. FRIEDMAN

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Docket Number

No. 2009-02149.

Attorney(S)

Marcus, Gould Sussman, LLP, White Plains, N.Y. (Kenneth J. Gould of counsel), for third-party defendant-appellant. Eric W. Berry, New York, N.Y., for respondent.

Judges

Mark C. Dillon
Thomas A. Dickerson
Randall T. Eng

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Smart Summary

Factual and Procedural Background

This appeal arises from an action involving claims for breach of contract. The third-party defendant-appellant, Fidelity National Title Insurance Company, challenged an amended judgment of the Supreme Court, Westchester County, which followed an order granting the motion of plaintiff Harrison Equities, LLC. The motion effectively dismissed certain affirmative defenses of Fidelity National Title Insurance Company related to allegations that Harrison Equities either created or assumed a defect in a deed and prejudiced subrogation rights by releasing certain parties. The order also precluded from trial evidence concerning releases, contributory negligence, and failure to mitigate damages by Harrison Equities. The Supreme Court subsequently denied a motion for leave to reargue and directed entry of judgment in favor of Harrison Equities for $530,000. Fidelity National Title Insurance Company appealed this judgment.

Legal Issues Presented

Whether the Supreme Court properly granted Harrison Equities, LLC's motion, effectively a summary judgment motion, despite it being untimely filed.
Whether the Supreme Court correctly dismissed the affirmative defenses and precluded certain evidence related to Harrison Equities' alleged role in the deed defect and prejudicing subrogation rights.
Whether Harrison Equities demonstrated good cause to justify the late filing of its motion for summary judgment under CPLR 3212(a).

Arguments of the Parties

Third-Party Defendant-Appellant (Fidelity National Title Insurance Company)

Argued against the dismissal of its affirmative defenses that Harrison Equities created, suffered, assumed, or agreed to the defect in the deed.
Contended that Harrison Equities prejudiced its rights of subrogation by giving releases to certain parties.
Opposed the preclusion of evidence concerning releases, contributory negligence, and failure to mitigate damages.

Plaintiff (Harrison Equities, LLC)

Moved to dismiss the affirmative defenses and preclude evidence detrimental to its claims.
Asserted entitlement to judgment based on the alleged defects and releases.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Rivera v City of New York, 306 AD2d 456	Timeliness and procedural requirements for summary judgment motions.	Used to support that Harrison's motion was untimely and should be denied absent good cause.
Rondout Elec. v Dover Union Free School Dist., 304 AD2d 808	Standards governing summary judgment motions and timeliness.	Reinforced the procedural impropriety of the late motion filed by Harrison.
Marshall v 130 N. Bedford Rd. Mount Kisco Corp., 277 AD2d 432	Requirements for summary judgment and timeliness.	Supported denial of untimely motions for summary judgment.
Downtown Art Co. v Zimmerman, 232 AD2d 270	Procedural rules for summary judgment motions.	Further confirmed the necessity of timely filing and good cause for exceptions.
Brill v City of New York, 2 NY3d 648	General principles concerning summary judgment and procedural fairness.	Referenced to emphasize the requirement of showing good cause for late summary judgment motions.

Court's Reasoning and Analysis

The court analyzed the procedural posture of Harrison Equities' motion and determined it was, in effect, an untimely motion for summary judgment. The court applied established New York case law emphasizing that summary judgment motions must be timely filed unless good cause is shown for a late filing, citing CPLR 3212(a) and relevant precedents. Harrison Equities failed to demonstrate good cause for the delay. Consequently, the Supreme Court erred in granting the motion and dismissing the affirmative defenses and precluding evidence. The court found the remaining contentions by Harrison Equities to be without merit. Therefore, the amended judgment was reversed, and the matter was remitted for trial to allow full consideration of the defenses and evidence.

Holding and Implications

The amended judgment is reversed, the motion of Harrison Equities, LLC is denied, and the case is remitted to the Supreme Court, Westchester County, for trial.

This decision reinstates the affirmative defenses and evidence previously excluded and requires the case to proceed to trial. The court did not set new legal precedent but reaffirmed the importance of procedural rules governing summary judgment motions, particularly timeliness and the necessity of showing good cause for late filings. The direct effect is that Harrison Equities will not obtain judgment at this stage, and the parties will have the opportunity to fully litigate the issues at trial.

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WEST BROADWAY FUNDING ASSOCIATES et al., Plaintiffs, and HARRISON EQUITIES, LLC, Respondent, v. GARY FRIEDMAN et al., Defendants/Third-Party Plaintiffs. FIDELITY NATIONAL TITLE INSURANCE COMPANY, Third-Party Defendant-Appellant, et al., Third-Party Defendants.

Ordered that the amended judgment is reversed, on the law, with costs, the motion of the plaintiff Harrison Equities, LLC, is denied, the orders entered September 30, 2008, and December 4, 2008, are modified accordingly, and the matter is remitted to the Supreme Court, Westchester County, for trial.

The motion of the plaintiff Harrison Equities, LLC (hereinafter Harrison), was, in effect, an untimely motion for summary judgment ( see Rivera v City of New York, 306 AD2d 456; Rondout Elec. v Dover Union Free School Dist., 304 AD2d 808; Marshall v 130 N. Bedford Rd. Mount Kisco Corp., 277 AD2d 432; Downtown Art Co. v Zimmerman, 232 AD2d 270). Accordingly, and in the absence of any showing of "good cause" for the late filing of such a motion (CPLR 3212 [a]), the Supreme Court should have denied the motion ( see generally Brill v City of New York, 2 NY3d 648).

Harrison's remaining contentions are without merit.