Velasquez v. Mosdos Meharam Brisk of Tashnad

189 A.D.3d 1655

140 N.Y.S.3d 49

Carlos VELASQUEZ, plaintiff,

v.MOSDOS MEHARAM BRISK OF TASHNAD, et al., defendants/third-party plaintiffs-respondents;

Active Fire Protection, Inc., third-party defendant-appellant

(and a fourth-party action).

2019–12120

Index No. 7590/15

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 13, 2020

December 30, 2020

Kaufman Dolowich & Voluck, LLP, Woodbury, N.Y. (Matthew J. Minero of counsel), for third-party defendant-appellant.

Baxter Smith & Shapiro, P.C., White Plains, N.Y. (Sim R. Shapiro of counsel), for defendants/third-party plaintiffs-respondents.

ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the third-party defendant appeals from an order of the Supreme Court, Orange County (Sandra B. Sciortino, J.), dated August 20, 2019. The order denied the motion of the third-party defendant, inter alia, to vacate an order of the same court dated May 29, 2019, granting the motion of the defendants/third-party plaintiffs for leave to reargue their prior motion for summary judgment on the third-party cause of action for contractual indemnification, and, upon reargument, in effect, vacating so much of a prior order of the same court dated December 10, 2018, as denied the prior motion of the defendants/third-party plaintiffs for summary judgment on the third-party cause of action for contractual indemnification and, thereupon, granted the prior motion.

ORDERED that the order dated August 20, 2019, is reversed, on the law and the facts, with costs, the motion of the third-party defendant is granted, the order dated May 29, 2019, is vacated, and the defendants/third-party plaintiffs' motion for leave to reargue their prior motion for summary judgment on the third-party cause of action for contractual indemnification is denied.

In October 2015, the plaintiff, an employee of the third-party defendant, Active Fire Protection, Inc. (hereinafter AFP), commenced this action against the defendants/third-party plaintiffs, Mosdos Meharam Brisk of Tashnad (hereinafter Mosdos) and J.B. Enterprises, LLC (hereinafter JBE), for injuries the plaintiff alleged he sustained when he was working at a construction site owned by Mosdos. According to the plaintiff, JBE was hired by Mosdos to construct a residential building at the site and JBE hired AFP to install fire sprinklers in the building. The plaintiff alleged that he was working for AFP in the building when he fell through an uncovered opening in the floor where a staircase was to be built.

Mosdos and JBE thereafter commenced a third-party action against AFP asserting, inter alia, a cause of action for contractual indemnification. Mosdos and JBE alleged that JBE and AFP had entered into an agreement regarding the work at the site and that the agreement included provisions for indemnification and insurance which required AFP to insure and indemnify both Mosdos and JBE for any damages they might be liable for with respect to the plaintiff's alleged injuries.

As is relevant to this appeal, Mosdos and JBE moved for summary judgment on the third-party cause of action for contractual indemnification, which the Supreme Court denied in an order dated December 10, 2018 (hereinafter the December 2018 order). Mosdos and JBE then moved for leave to reargue their motion for summary judgment. In an order dated May 29, 2019 (hereinafter the May 2019 order), the court granted the unopposed motion and, upon reargument, in effect, vacated so much of the December 2018 order as denied the motion for summary judgment, and thereupon granted the motion.

Thereafter, AFP moved to vacate the May 2019 order issued upon its default, and to thereupon deny the motion of Mosdos and JBE for leave to reargue. In an order dated August 20, 2019, the Supreme Court, denied AFP's motion. AFP appeals.

A party seeking to vacate an order entered upon its default must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015[a][1] ; Ferreira v. Singh, 176 A.D.3d 782, 783–784, 110 N.Y.S.3d 40 ; Santos v. Penske Truck Leasing Co., 105 A.D.3d 1029, 1029–1030, 964 N.Y.S.2d 207 ). Here, on appeal, Mosdos and JBE do not dispute AFP's contention that it proffered a reasonable excuse for its failure to oppose their motion for leave to reargue. In addition, contrary to the determination of the Supreme Court, AFP established a potentially meritorious opposition to the motion of Mosdos and JBE for leave to reargue by showing that there was no basis for reargument pursuant to CPLR 2221(d), as Mosdos and JBE failed to show that the court had overlooked or misapprehended the facts or law when it denied their motion for summary judgment in the December 2018 order (see Williams v. Abiomed, Inc., 173 A.D.3d 1115, 1118, 100 N.Y.S.3d 907 ; Capstone Bus. Credit, LLC v. Imperia Family Realty, LLC, 70 A.D.3d 882, 884, 895 N.Y.S.2d 199 ).

Indeed...