        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

382
CA 12-01329
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, AND SCONIERS, JJ.


CARL D. MULLIN, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

WASTE MANAGEMENT OF NEW YORK, LLC,
DEFENDANT-RESPONDENT.
-------------------------------------------
WASTE MANAGEMENT OF NEW YORK, LLC,
THIRD-PARTY PLAINTIFF-RESPONDENT,

                    V

RICCELLI ENTERPRISES, INC.,
THIRD-PARTY DEFENDANT-APPELLANT.


COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (NICOLE MARLOW-JONES OF
COUNSEL), FOR THIRD-PARTY DEFENDANT-APPELLANT.

WOODS OVIATT GILMAN LLP, ROCHESTER (JAMES P. MCELHENY OF COUNSEL), FOR
DEFENDANT-RESPONDENT AND THIRD-PARTY PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Wayne County (Dennis
M. Kehoe, A.J.), entered April 17, 2012. The order, among other
things, granted in part third-party plaintiff’s motion for summary
judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff, an employee of third-party defendant,
Riccelli Enterprises, Inc. (Riccelli), commenced this action seeking
damages for injuries he sustained when he fell from a ladder while
adjusting a tarp on Riccelli’s trailer. The accident occurred at the
Kingston facility of defendant-third-party plaintiff, Waste Management
of New York, LLC (Waste Management). Pursuant to an agreement between
Riccelli and Waste Management, Riccelli was required to name Waste
Management and Waste Management, Inc. (Waste, Inc.) as additional
insureds on various insurance policies, including workers’
compensation, commercial general liability (CGL), and automobile
liability policies.

     Supreme Court properly granted that part of Waste Management’s
motion seeking partial summary judgment on its breach of contract
cause of action against Riccelli based on Riccelli’s failure to name
                                 -2-                           382
                                                         CA 12-01329

Waste Management as an additional insured on the required insurance
policies (see DiBuono v Abbey, LLC, 83 AD3d 650, 652). Riccelli
failed to respond to Waste Management’s demand to produce the various
insurance policies showing that Waste Management was a named insured
and, indeed, as noted by the court, Riccelli admitted in response to
Waste Management’s motion that it failed to name Waste Management as
an additional insured.

     Moreover, the court did not abuse its discretion in denying
Riccelli’s motion seeking leave to submit new evidence while the
court’s decision was pending on the original motions. In determining
this issue, we note that the motion was analogous to one for leave to
renew, and we therefore apply the analysis applicable to such motions
(see generally Chiappone v William Penn Life Ins. Co. of N.Y., 96 AD3d
1627, 1627-1628). Riccelli failed to establish that the purported new
evidence was not in existence or not available at the time of Waste
Management’s motion, and, in fact, the insurance policies were all in
existence well before Waste Management’s motion. The court also
properly concluded that Riccelli failed to establish a reasonable
justification for its failure to present the evidence in opposition to
Waste Management’s motion (see generally id. at 1628). In any event,
the court properly concluded that the new information would not have
resulted in a different determination (see generally id.). The CGL
policy shows that Waste, Inc. was named as an additional insured, but
Waste Management was not. In its September 18, 2008 letter to
Riccelli, the CGL insurer specifically noted that Waste Management was
not added as an additional insured until after the accident. In
addition, while Riccelli correctly notes that its automobile insurer
initially offered to defend Waste Management, that insurer
subsequently issued a disclaimer letter on the ground that Waste
Management was not added as an additional insured on the policy until
after the accident.




Entered:   May 3, 2013                          Frances E. Cafarell
                                                Clerk of the Court
