Fitzgerald v. City of New York , 33 N.Y.S.3d 899 ( 2016 )

Fitzgerald v City of New York (2016 NY Slip Op 05452)

Fitzgerald v City of New York

2016 NY Slip Op 05452

Decided on July 7, 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 July 7, 2016
Mazzarelli, J.P., Friedman, Andrias, Webber, Gesmer, JJ.

1694N 304808/09 83839/10

[*1] Michael Fitzgerald, Plaintiff,

v

The City of New York, et al., Defendants-Respondents, International Contractors Services, LLC, Defendant-Appellant.



The City of New York, Third-Party Plaintiff, -against-

v

A.H. Harris & Sons, Inc, et al., Third-Party Defendant-Respondent, International Contractors Services, LLC, Third-Party Defendant-Appellant.

Baxter Smith & Shapiro, P.C., Hicksville (Sim R. Shapiro of counsel), for appellant.

Fabiani Cohen & Hall, LLP, New York (William C. Lamboley of counsel), for the City of New York, respondent.

Law Office of James J. Toomey, New York (Michael J. Kozoriz of counsel), for A.H. Harris & Sons, Inc, respondent.

Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered August 4, 2015, which, inter alia, granted the motion of defendant/third-party plaintiff City of New York and cross motion of defendant/third-party defendant A.H. Harris & Sons, Inc. for an order conditionally striking International Contractors Services' third-party answer, unanimously affirmed, without costs.

The IAS court providently exercised its discretion in conditionally striking third-party defendant International Contractor Services' third-party answer based on its repeated failure to comply with discovery directives (see e.g. Loeb v Assara N.Y. IL.P., 118 AD3d 457, 457 [1st Dept 2014]). We have considered the remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 7, 2016

DEPUTY CLERK