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Hernandez v. Yonkers Contracting Co.3/11/2002
This opinion is uncorrected and subject to revision before publication in the Official Reports.
(*1)
Submitted - November 8, 2001
DECISION & ORDER
In an action to recover damages for personal injuries and wrongful death, etc., (1) the defendant Yonkers Contracting Company, Inc., appeals, and the defendants Ventura Leasing Company, Briarwood Contracting Group, a Division of E.C.C.O. III Enterprises, Inc., s/h/a Briarwood Contracting Group, E.C.C.O. III Enterprises, Inc., s/h/a ECCO Enterprises, Inc., and Walter E. Dreeland, separately appeal, from so much of an order of the Supreme Court, Kings County (Huttner, J.), dated April 25, 2001, as denied those branches of their respective motions which were for (a) summary judgment dismissing the complaint insofar as asserted against them, and (b) costs and an award of an attorney's fee pursuant to CPLR 8303-a, and (2) the defendants Halmar Builders of New York, Inc., and Halmar Construction Corp. separately appeal from so much of the same order as, upon granting that branch of their motion which was to dismiss the complaint insofar as asserted against them, did so without prejudice to the plaintiff recommencing the action against them and denied that branch of their motion which was for costs and an award of an attorney's fee pursuant to CPLR 8303-a.
ORDERED that the order is reversed insofar as appealed from, with costs to the appellants appealing separately and filing separate briefs, the motions are granted, the complaint is dismissed insofar as asserted against the appellants, the action against the remaining defendant is severed, and the matter is remitted to the Supreme Court, Westchester County, for a determination of the amount of costs and attorney's fees.
While working on a construction project for the appellant E.C.C.O. III Enterprises, Inc., sued herein as ECCO Enterprises, Inc. (hereinafter ECCO III), the plaintiff's decedent suffered personal injuries from which he subsequently died when he was crushed by a crane operated by a co-worker, the appellant Walter E. Dreeland. Although she collected Workers' Compensation benefits in connection with the incident, the plaintiff commenced the instant action in Supreme Court, Kings County, against multiple defendants, including the appellants herein.
Prior to serving their respective answers, each of the appellants requested that the plaintiff discontinue the action against it, but she refused. Then, before any discovery had taken place, the appellants separately moved for a change of venue to Westchester County, for summary judgment dismissing the complaint insofar as asserted against them and for an award of costs and an attorney's fee against the plaintiff pursuant to CPLR 8303-a. The Supreme Court granted those branches of the motions which were for a change of venue to Westchester County, but otherwise denied the motions, except with respect to the appellants Halmar Builders of New York and Halmar Construction Corp. (hereinafter (*3)collectively referred to as Halmar). The court dismissed the action insofar as asserted against Halmar, but did so "without prejudice to recommencing against Halmar * * * at the close of discovery and contingent upon [plaintiff's] good faith showing of Halmar's nexus to" the construction project at issue. These appeals ensued. We reverse insofar as appealed from by each of the appellants, and grant the motions, inter alia, to dismiss the complaint and for awards of costs and attorney's fees pursuant to CPLR 8303-a.
The appellants Yonkers Contracting Company (hereinafter Yonkers Contracting), Halmar, Ventura Leasing Company, and Briarwood Contracting Group each established a
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