302363/10. JOHN ROTANTE, plf, v. ADVANCE TRANSIT CO., INC., ET AL., def; ADVANCE TRANSIT CO., INC., ET AL., third-party plf-res, v. DEVIN MOSCARELLI, third-party def-res, MICHELLE POMPEO, ET AL., third-party def-app — Keane & Bernheimer, PLLC, Valhalla (Connor W. Fallon of counsel), for ap — Daniel A. Fried, Yonkers, for Advance Transit Co., Inc. and Melvin J. Colon, res — Russo & Toner LLP, New York (Alexandra L. Alvarez of counsel), for Devin Moscarelli, res — Order, Supreme Court, Bronx County (Elizabeth A. Taylor, J.), entered July 18, 2016, which denied the motion of third-party defendants Michelle Pompeo and Dominick Pompeo (the Pompeos) for summary judgment dismissing the third-party action as against them as untimely, unanimously reversed, on the law and the facts, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Plaintiff seeks to recover for serious injuries allegedly sustained in a motor vehicle accident involving a vehicle owned and operated by defendants. Defendants impleaded the owners and drivers of two vehicles involved in a subsequent accident with plaintiff’s vehicle, seeking contribution in the event they are found liable for plaintiff’s injuries. Before completion of discovery, third-party defendants the Pompeos moved for summary judgment dismissing the third-party action on the ground that plaintiff did not suffer any injury in the second accident and that motion was denied. After plaintiff filed the note of issue, the Pompeos moved to vacate the note of issue on the ground that discovery, including the deposition of third-party defendant Moscarelli, the other driver in the second accident, was still outstanding. In the alternative, the Pompeos sought an extension of their time to move for summary judgment. Supreme Court granted the motion only to the extent of directing that post note-of-issue discovery be completed. After Moscarelli failed to appear for his deposition and was precluded from testifying at trial, the Pompeos again moved for summary judgment, arguing that they had good cause for the delay and for making a second motion. Supreme Court denied their motion as an untimely, successive motion for summary judgment.
