VASQUEZ v. <<

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

Ramon VASQUEZ, et al., Plaintiffs-Appellants, v.

G.A.P.L.W. REALTY, INC., Defendant-Respondent/Third-Party Plaintiff, v. RENEWAL ARTS CONTRACTING, INC., Third-Party Defendant-Respondent.

Decided: October 29, 1998

Before ROSENBERGER, J.P., NARDELLI, MAZZARELLI, ANDRIAS and SAXE, JJ. Herbert Nason, for Plaintiffs-Appellants. Eugene Guarneri, for Defendant-Respondent/Third-Party Plaintiff. William A. Rome, for Third-Party Defendant-Respondent.

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered March 27, 1998, which, in an action under Labor Law § 240(1), denied plaintiffs' motion to dismiss defendant's and third-party defendant's recalcitrant worker defense on the ground that it had not been pleaded and for summary judgment upon dismissal of such defense, or, in the alternative, to compel postnote-of-issue disclosure as to such defense and to sever the third-party action, unanimously affirmed, without costs.

 Assuming arguendo the allegation in the answers of “plaintiff's culpable conduct” was insufficient to raise a “recalcitrant worker” defense (cf., Stolt v. General Foods Corp., 81 N.Y.2d 918, 597 N.Y.S.2d 650, 613 N.E.2d 556), we nevertheless affirm, on the ground that plaintiffs waived objection to any such pleading defect by addressing the recalcitrant worker defense at length on the merits on the prior motion for summary judgment (see, 236 A.D.2d 311, 654 N.Y.S.2d 16).   Under the circumstances, plaintiffs' present motion was an improper second summary judgment motion unjustified by any newly discovered evidence or other sufficient cause (compare, National Enters. Corp. v. Dechert Price & Rhoads, 246 A.D.2d 481, 482, 667 N.Y.S.2d 745, 747, with Boston Concessions Group v. Criterion Center Corp., 250 A.D.2d 435, 673 N.Y.S.2d 111).   Plaintiffs' claimed unawareness of the recalcitrant worker defense at the time they cut off further disclosure by filing a note of issue is not a “special, unusual or extraordinary circumstance” warranting postnote-of-issue disclosure (see, Grant v. Wainer, 179 A.D.2d 364, 365, 577 N.Y.S.2d 839).   Severance of the claim for contribution and indemnification was properly denied in the interest of judicial economy (see, Huttick v. Biograph Realty Corp., 37 A.D.2d 597, 322 N.Y.S.2d 827).

MEMORANDUM DECISION.