680 NYS2d 806 | N.Y. Sup. Ct. | 1998
OPINION OF THE COURT
Plaintiff Caroline Brzozowski alleges that, on February 3, 1994, she was injured when she slipped and fell in a parking lot owned by the estate of Joseph Imbriale, Jr., Joseph J. Imbriale, III, and Margaret Imbriale (collectively, the Imbriales) and apparently controlled by Chriselic, Inc., doing business as Zio Italian Bistro (Chriselic). Plaintiff commenced this action by the filing of a summons and complaint on February 2, 1996. Chriselic commenced a third-party action against the alleged operators of the parking lot and, on August 5, 1997, the Imbriales commenced a second third-party action against the operators of the parking lot and also against George Marchetti Brokerage, Inc. (the Brokerage) and George Marchetti individually. The Imbriales’ allegations against these latter second third-party defendants are based on an alleged failure to secure insurance coverage. The Imbriales’ fifth cause of action alleges that they “entered into a contract and agreement with third-party defendant George Marchetti Brokerage, Inc.” to secure insurance coverage and that the Brokerage “breached said agreement.” The Imbriales’ seventh cause of action alleges that they “entered into a contract and agreement” with George Marchetti whereby he “would act as third-party plaintiffs’ insurance broker to secure and procure proper insurance coverage for the * * * property.” The causes of action arose on May 7, 1993, the date the policy of insurance was allegedly improperly secured.
The Brokerage and George Marchetti (1) move for summary judgment dismissing the second third-party complaint on the ground that the action is time barred; (2) move to dismiss the action against George Marchetti individually on the ground that he was acting on behalf of the Brokerage; and (3) move to sever the second third-party action from the main action on the ground that there are no common questions of law or fact. The Imbriales do not oppose dismissal of the action against George Marchetti and that branch of the motion will be granted.
Ordered, that the second third-party action is hereby dismissed against George Marchetti and the action severed accordingly; and it is further ordered, that the second third-party action is hereby dismissed against the Brokerage as time barred and the action severed accordingly.