Ehrenspeck v Spear, Leeds & Kellogg, L.P., 2008 NY Slip Op 04132 [51 AD3d 409]

May 1, 2008

Appellate Division, First Department

— [*1]

Kramer Levin Naftalis & Frankel, LLP, New York (Michael J. Dell of counsel), for appellants.

Begos Horgan & Brown LLP, Bronxville (Patrick W. Begos of counsel), for respondent.

Order, Supreme Court, New York County (Herman Cahn, J.), entered February 1, 2007, which, to the extent appealed from, denied the motion of Spear, Leeds & Kellogg, L.P. and Spear, Leeds & Kellogg-Futures Division Long Term Disability Income Plan (collectively, SLK) for summary judgment dismissing plaintiff’s claims against it, and, upon a search of the record, dismissed SLK’s cross claim for indemnification against First Unum, unanimously affirmed, without costs. Order, same court and Justice, entered September 24, 2007, which denied SLK’s motion for leave to amend its cross claim against First Unum, unanimously affirmed, without costs.

SLK’s cross claim against First Unum was related to the subject of the motion before the court ( see Dunham v Hilco Constr. Co. , 89 NY2d 425, 429-430 [1996]; see also Frank v City of New York , 211 AD2d 478, 479 [1995]), which was whether plaintiff was covered under First Unum’s long-term disability policy.

SLK’s proposed amended cross claim either contradicted SLK’s own allegations or the policy itself or was repetitive of the original cross claim ( see generally American Theatre for the Performing Arts, Inc. v Consolidated Credit Corp. , 45 AD3d 506 [2007]).

[*2] We have considered SLK’s remaining arguments and find them unavailing. Concur—Lippman, P.J., Gonzalez, Moskowitz and Acosta, JJ. [ See 15 Misc 3d 1107(A), 2007 NY Slip Op 50525(U).].