Kitkas v. Windsor Place Corp.

Mar 11, 2008
Versions:49 A.D.3d 607
852 N.Y.S.2d 809
852 N.Y.2d 809

NIKOLAOS KITKAS, Respondent, v WINDSOR PLACE CORP., Defendant and Third-Party Plaintiff-Respondent and Third Third-Party Plaintiff-Respondent, et al., Defendants. T & G CONTRACTING CORP., Third-Party Defendant and Second Third-Party Plaintiff-Respondent; BOCA ELECTRIC CORP., Second Third-Party Defendant and Third Third-Party Defendant-Appellant. [852 NYS2d 809]

“A motion on notice is made when a notice of the motion is served” (CPLR 2211; see Russo v Eveco Dev. Corp. 256 AD2d 566 [1998]; Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560, 561 [2006]). Thus, contrary to the conclusion reached by the Supreme Court, the initial motion for summary judgment made by the second third-party defendant/third third-party defendant Boca Electric Corp. (hereinafter Boca) was timely when it was served on all opposing counsel by mail on December 16, 2005 (see CPLR 2103 [b] [2]; see also Weinstein-Korn-Miller NY Civ Prac ¶ 2211.07). Boca‘s subsequent service of an amended notice of motion, in order to schedule the return of the motion on a date permitted by the Supreme Court‘s rules of practice, did not render the motion untimely (see Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d at 562). Accordingly, we remit the matter to the Supreme Court, Queens County, to determine Boca‘s motion on the merits. Spolzino, J.P., Santucci, Angiolillo and Carni, JJ., concur.