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Samuels v. Consolidated Edison Co. of New York, Inc.

96 A.D.3d 685 Court N.Y. App. Div. Decision date 2012-06-28 English

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p. 685
William C. Samuels, Appellant, v 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, v Alex R. Fradkoff et al., Second Third-Party Defendants, and Theodore Wagner Plumbing and Heating Corp., Second Third-Party Defendant-Respondent.
[946 NYS2d 864]

—Order, Supreme Court, New York County (Judith J. Gische, J.), entered June 11, 2010, which granted defendant Consolidated Edison Company of New York’s (Con Ed) oral application to dismiss plaintiffs 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 pretrial oral application to dismiss plaintiffs 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. Concur— Saxe, J.P., Friedman, Renwick, DeGrasse and Richter, JJ.

Motions to dismiss appeal denied and cross motion to deem the appeal timely granted.