BORTUGNO v. [And Third-Party Actions] (2024)

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

Nicholas BORTUGNO et al., Plaintiffs-Respondents, v. NEW YORK STATE URBAN DEVELOPMENT CORP., doing business as Empire State Development Corp., et al., Defendants, Schindler Elevator Corporation et al., Defendants-Appellants. [And Third-Party Actions]

2607-, 2607A

Decided: September 26, 2024

Webber, J.P., Kern, Oing, González, Rosado, JJ.

Keller, O'Reilly & Watson, P.C., Woodbury (Vincent J. Petrozzo of counsel), and Schaerr Jaffe LLP, Washington DC (Howard Christopher Bartolomucci of the bars of the State of Virginia and the District of Columbia, admitted pro hac vice, of counsel), for appellants. Grey & Grey, LLP, Farmingdale (Sherman B. Kerner of counsel), for respondents.

Order, Supreme Court, New York County (Judy H. Kim, J.), entered on or about August 4, 2023, which, to the extent appealed from as limited by the briefs, denied the motion of defendants Schindler Elevator Corporation and Midland Elevator, Co., Inc. (collectively, defendants) for leave to file a late motion pursuant to CPLR 4404, unanimously affirmed, without costs. Appeal from so much of aforesaid order, denying defendants’ motion to reargue, unanimously dismissed, without costs, as taken from a nonappealable order.

The court providently exercised its discretion in denying the motion as untimely made more than 15 days after the jury had been discharged after a mistrial was declared (see Turco v. Turco, 117 A.D.3d 719, 723, 985 N.Y.S.2d 261 [2d Dept. 2014]) and determining that defendants did not show good cause for their delay (see Verdi v. Jacoby & Meyers, LLP, 154 A.D.3d 901, 903, 63 N.Y.S.3d 71 [2d Dept. 2017]; CPLR 4405).

We have considered defendants’ remaining contentions and find them unavailing.

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