Sierra v. Ogden Cap Properties, LLC , 24 N.Y.S.3d 604 ( 2016 )

Sierra v Ogden Cap Props., LLC (2016 NY Slip Op 00598)

Sierra v Ogden Cap Props., LLC

2016 NY Slip Op 00598

Decided on January 28, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 28, 2016
Tom, J.P., Sweeny, Gische, Kapnick, JJ.

56 103927/11 590040/12 590674/12

[*1]Jessica Sierra, Plaintiff, —

v

Ogden Cap Properties, LLC, et al., Defendants-Respondents, Emblemhealth Services Company, LLP, et al., Defendants. Ogden Cap Properties, LLC, et al., Third-Party Plaintiffs-Respondents, —— Health Insurance Plan of Greater New York, Third-Party Defendant, Lenox Hill Hospital, Third-Party Defendant-Appellant. [And A Second Third-Party Action]

The Law Offices of Tobias & Kuhn, New York (Michael V. DiMartini of counsel), for appellant.

Mauro Lilling NaParty LLP, Woodbury (Kenneth B. Danielsen of counsel), for respondents.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered July 14, 2014, which denied defendant/third-party defendant Lenox Hill Hospital's ^[FN1] motion for summary judgment dismissing the complaint and all other claims against it and its application for leave to submit a new dispositive motion following the completion of discovery, unanimously affirmed, without costs.

The motion court correctly found that Lenox Hill failed to establish prima facie that its sublease had expired before plaintiff's 2009 accident. While the initial term of the sublease expired in 2006, the sublease provided for automatic renewals, and indicated that it was co-[*2]terminous with the within-referenced Health Care Services Agreement between Lenox Hill and codefendant Health Insurance Plan of Greater New York. In support of its motion, Lenox Hill submitted the sublease and an affidavit asserting that the Health Care Services Agreement was terminated on July 31, 2006. However, it did not submit the Health Care Services Agreement itself. The motion court correctly determined that that omission was fatal to the motion.

We decline to consider Lenox Hill's argument as to standing, which it raised for the first time in its reply brief. We have considered Lenox Hill's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 28, 2016

CLERK

Footnotes

Footnote 1:Lenox Hill Hospital, among other parties, was named as a defendant in the second amended complaint. It was omitted as a defendant from the consolidated caption due to a clerical error.