EHRENSPECK v. First Unum Life Insurance Company, Defendant-Respondent. (2008)

Order, Supreme Court, New York County (Herman Cahn, J.), entered February 1, 2007, which, to the extent appealed from, denied the motion of Spear, Leeds & Kellogg, L.P. and Spear, Leeds & Kellogg-Futures Division Long Term Disability Income Plan's (collectively, SLK) for summary judgment dismissing plaintiff's claims against it, and, upon a search of the record, dismissed SLK's cross claim for indemnification against First Unum, unanimously affirmed, without costs.   Order, same court and Justice, entered September 24, 2007, which denied SLK's motion for leave to amend its cross claim against First Unum, unanimously affirmed, without costs.

SLK's cross claim against First Unum was related to the subject of the motion before the court (see Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 429-430, 654 N.Y.S.2d 335, 676 N.E.2d 1178 [1996];  see also Frank v. City of New York, 211 A.D.2d 478, 479, 621 N.Y.S.2d 546 [1995] ), which was whether plaintiff was covered under First Unum's long-term disability policy.

SLK's proposed amended cross claim either contradicted SLK's own allegations or the policy itself or was repetitive of the original cross claim (see generally American Theatre for Performing Arts, Inc. v. Consolidated Credit Corp., 45 A.D.3d 506, 846 N.Y.S.2d 60 [2007] ).

We have considered SLK's remaining arguments and find them unavailing.