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Sloniger v. Niagara Mohawk Power Corp.

306 A.D.2d 842 Court N.Y. App. Div. Decision date 2003-06-13 Docket Appeal No. 1 English

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p. 842
Edward C. Sloniger et al., Plaintiffs, v Niagara Mohawk Power Corporation, Defendant and Third-Party Plaintiff. New York Telephone Company, Third-Party Defendant. New York Telephone Company, Doing Business as NYNEX, Fourth-Party Respondent, v R.D. Werner Co., Inc., et al., Fourth-Party Defendants-Appellants.
(Appeal No. 1.)
[761 NYS2d 757]

—Appeal from an order of Supreme Court, Niagara County (Joslin, J.), entered September 21, 1998, which granted the motion of fourth-party plaintiff for leave to serve a second amended fourth-party complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying the motion of fourth-party plaintiff for leave to serve a second amended fourth-party complaint to the extent that fourth-party plaintiff sought to add a cause of action alleging that fourth-party defendants breached their contractual obligation to procure insurance coverage for the benefit of fourth-party plaintiff and as modified the order is affirmed without costs.

Memorandum: Supreme Court erred in granting the motion of fourth-party plaintiff for leave to serve a second amended fourth-party complaint to the extent that fourth-party plaintiff sought to add a cause of action alleging that fourth-party defendants breached their contractual obligation to procure insurance coverage for the benefit of fourth-party plaintiff. That cause of action, which accrued at the time of the alleged breach, is time-barred (see Polat v Fifty CPW Tenants Corp., 249 AD2d 163 , 163-164 [1998]; Vanarthros v St. Francis Hosp., 234 AD2d 450 , 451 [1996]; see generally Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399 , 402 [1993]). The court properly granted

p. 843
the motion, however, to the extent that fourth-party plaintiff sought to add a cause of action alleging that fourth-party defendants breached their agreement to indemnify fourth-party plaintiff with respect to the claims asserted against it in both the main action and the third-party action. That cause of action, which did not accrue until fourth-party plaintiff made payment on those claims, is timely (see Fisher v Preston, 251 AD2d 843 , 844 [1998]; Polat, 249 AD2d at 164 ). Finally, the court erred in granting the motion of fourth-party plaintiff to strike the answer of fourth-party defendants and in granting judgment in favor of fourth-party plaintiff based upon fourth-party defendants’ delay in complying with discovery demands. “[T]he harsh remedy of striking an answer should be granted only where it is conclusively shown that the discovery default was deliberate or contumacious” (Gadley v U.S. Sugar Co., 259 AD2d 1041 , 1042 [1999]; see Brothers v Bunkoff Gen. Contrs., 296 AD2d 764 , 765 [2002]). In our view, fourth-party plaintiff failed to make that conclusive showing.

In appeal No. 1, we therefore modify the order by denying the motion of fourth-party plaintiff for leave to serve a second amended fourth-party complaint to the extent that fourth-party plaintiff sought to add a cause of action alleging that fourth-party defendants breached their contractual obligation to procure insurance coverage for the benefit of fourth-party plaintiff. In appeal No. 2, we reverse the order, deny the motion of fourth-party plaintiff to strike fourth-party defendants’ answer to the second amended fourth-party complaint, reinstate that answer and vacate the award of judgment in favor of fourth-party plaintiff. In view of our determination, the judgment in appeal No. 3 must be vacated. Present — Green, J.P., Wisner, Scudder, Kehoe and Burns, JJ.

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