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SARMIENTO v. 111 EIGHTH AVENUE LLC

302 A.D.2d 284 (2003)

756 N.Y.S.2d 10

ROBERT SARMIENTO et al., Plaintiffs, v. 111 EIGHTH AVENUE LLC et al., Appellants, and J.T. FALK & COMPANY, INC., Respondent, et al., Defendant. 111 EIGHTH AVENUE LLC et al., Third-Party Plaintiffs-Appellants, v. BLUE DIAMOND SHEET METAL et al., Third-Party Defendants, and KEMPER INSURANCE COMPANY, Third-Party Defendant-Respondent. (And Another Action.)

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided February 20, 2003.

The motion court properly exercised its discretion in refusing to accept the submission of a retroactive endorsement which would have made The Travelers an excess insurer and Kemper a primary carrier relative thereto, instead of a coinsurer therewith. No reasonable excuse was offered for the failure to produce the endorsement on the initial two motions (see CPLR 2221 [e] [3]), and, in any case, the court's discretion was...

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