Opinion
2012-06-28
William C. SAMUELS, Plaintiff–Appellant, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant/Third–Party Plaintiff–Respondent, v. Roadway Contracting, Inc., Third–Party Defendant–Respondent. Consolidated Edison Company of New York, Inc., Second Third–Party Plaintiff, v. Alex R. Fradkoff, etc., et al., Second Third–Party Defendants, Theodore Wagner Plumbing and Heating Corp., Second Third–Party Defendant–Respondent.
Zetlin & De Chiara, LLP, New York (James H. Rowland of counsel), for appellant. Richard W. Babinecz, New York (Stephen T. Brewi of counsel), for Consolidated Edison Company of New York, Inc., respondent.
Zetlin & De Chiara, LLP, New York (James H. Rowland of counsel), for appellant. Richard W. Babinecz, New York (Stephen T. Brewi of counsel), for Consolidated Edison Company of New York, Inc., respondent.
Mauro Lilling Naparty LLP, Great Neck (Katherine Herr Solomon of counsel), for Roadway Contracting, Inc., respondent.
Faust Goetz Schenker & Blee, LLP, New York (Christopher B. Kinzel of counsel), for Theodore Wagner Plumbing and Heating Corp., respondent.
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 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431 (2004). In addition the motion should have been made on papers.