Preview
FILED: DUTCHESS COUNTY CLERK 03/21/2024 04:41 PM INDEX NO. 2015-52210
NYSCEF DOC. NO. 148 RECEIVED NYSCEF: 03/21/2024
"C"
Exhibit
FILED: DUTCHESS COUNTY CLERK 03/21/2024 04:41 PM INDEX NO. 2015-52210
INDEX NO. 2015-52210
NYSCEF DOC. NO. 148 RECEIVED NYSCEF: 03/21/2024
NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 01/04/2024
SUPREME COURT- STATE OF NEW YORK
DUTCHESS COUNTY
Present: Hon. THOMAS R. DAVIS, J.S.C.
SUPREME COURT: DUTCHESS COUNTY
___________________________________________------_______________________x
KENNETH GAROFOLO and JENNIFER DECISION AND ORDER
GAROFOLO, (Motion Seq. #3 and #4)
Plaintiffs
-against-
Index No.: 2015-52210
DEVIN J. CARPENTER, PREFERRED GROUP OF
MANHATTAN, INC., CONSOLIDATED RAIL
CORPORATION and CSX TRANSPORTATION, INC.,
Defendants.
________------._________..______________________________________________Ç
DEVIN J. CARPENTER,
Third-Party Plaintiff,
-against-
THE LAST TRAIN STOP, INC., THE LAST TRAIN
STOP, INC. d/b/a MAHONEY'S IRISH PUB &
STEAKHOUSE, P.O.K. TRAIN STATION, LLC, P.O.K.
TRAIN STATION, LLC d/b/a MAHONEY'S IRISH
PUB & STEAKHOUSE and MAHONEY'S IRISH PUB
& STEAKHOUSE,
Third-Party Defendants.
_______________________________________________________________________x
This is an action for personal injuries stemming from a physical altercation that occurred
outside a bar and restaurant on November 22, 2014. By notice of motion dated September 7,
2023, the third-party defendant, The Last Train Stop, Inc.i/s/h/a The Last Train Stop, Inc. d/b/a
Mahoney's Irish Pub & Restaurant and Mahoney's Irish Pub & Steakhouse, moves pursuant to
CPLR 3212 and 3211 to dismiss the third-party complaint against it (motion sequence #3). By
notice of motion dated September 15, 2023, the defendant/third-party plaintiff, Devin J.
Carpenter, moves pursuant to CPLR 3211(a)(5) to dismiss the complaint against him (motion
sequence #4). The following papers were read and considered in determining the motions:
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Motion #3:
Movant's motion papers identified as NYSCEF document numbers 84 through
105;
Plaintiff s opposition papers identified as NYSCEF document numbers 125
through 132;
Movant's reply papers identified as NYSCEF document number 134;
Motion #4:
Movant's motion papers identified as NYSCEF document numbers 109 through
117;
Plaintiff's opposition papers identified as NYSCEF document numbers 125
through 132.
Relevant Factual and Procedural Background
On November 22, 2014, plaintiff, Kenneth Garofolo ("Garofolo") was a night manager at
a bar and restaurant commonly known as Mahoney's Irish Pub & Steakhouse ("Mahoney's").
Defendant, Devin 1 Carpenter ("Carpenter"), was a patron who arrived, already intoxicated, at
11pm!
Mahoney's sometime between and midnight and continued to purchase and consume
alcohol while there. A little before 2:00am, a verbal altercation ensued between Carpenter and a
third-person inside Mahoney's which resulted in multiple security personnel ("bouncers")
removing Carpenter from the bar, outside into the parking lot. Garofolo also went outside and,
according to a witness, was telling Carpenter (along with a bouncer) that he had to leave-he had
overstayed his welcome. Also according to a witness, after Garofolo turned away from
Carpenter, Carpenter punched Garofolo on the side of his face and/or head. Garofolo was
knocked out, fell to the ground and hit his head. He was unconscious for a few minutes. He was
taken to the hospital. He is alleged to have suffered, among other injuries, facial fractures and a
traumatic brain injury.
1 1 I pm on November 2 I. 2022.
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Carpenter was arrested. On December 1, 2016, he was convicted by plea to "Harassment
Contact."
2"¹:Physical
This action was commenced by the filing of a summons and complaint on December 28,
"negligently"
2015. In his complaint, plaintiff alleges, inter alia, that Carpenter assaulted him.
On January 24, 2020, Carpenter filed a third-party summons and complaint against
several parties, among them, The Last Train Stop, Inc. (sued herein, as, among other names,
Mahoney's). In his third-party complaint, Carpenter asserts claims for common law
indemnification and/or contribution. Among the facts he alleges in his pleading are that the
third-party defendants negligently hired, trained and/or supervised its employees (which would
include the plaintiff).
The Last Train Stop, Inc. now moves for, inter alia, summary judgment to dismiss the
third-party complaint against it. It argues that Carpenter has no viable claim for common law
indemnification, common law contribution or negligent hiring, that plaintiff did not suffer a
injury"
"grave under the Workman's Compensation Law, and that the plaintiff's claim is barred
by the one-year statute of limitations.
Carpenter also moves to dismiss the complaint as against him asserting that the plaintiff s
claim is barred by the one-year statute of limitations.
Discussion
Common Law Indemnification
"'Common-law indemnification is warranted where a defendant's role in causing
vicarious"
the plaintiffs injury is solely passive, and thus its liability is purely
(Balladares v Southgate Owners Corp., 40 AD3d 667, 671 [2007]; see Dreyfus v
MPCC Coq>., 124 AD3d 830, 830 [2015]). 'Since the predicate of common-law
indemnity is vicarious liability without actual fault on the part of the proposed
indemnitee, it follows that a party who has itself actually participated to some
doctrine'
degree in the wrongdoing cannot receive the benefit of the (Desena v
North Shore Hebrew Academy, 119 AD3d 631, 635 [2014] [internal quotation
omitted])"
marks (Board of Managers of Olive Park Condominium v. Maspeth
Props.. LLC, 170 AD3d 645 [2d Dept 2019]).
"The key element of a cause of action for common-law indemnification is not a
duty running from the indemnitor to the injured party, but rather, is a separate
duty owed the indemnitee by the indemnitor (see Raquet v Braun. 90 NY2d 177
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"
[1997]; Lovino, Inc. v Lavallee Law Offs., 96 AD3d 909 [2012]). 'Since the
predicate of common-law indemnity is vicarious liability without actual fault on
the part of the proposed indemnitee, it follows that a party who has itself actually
participated to some degree in the wrongdoing cannot receive the benefit of the
doctrine' "
(Henderson v Waldbaums, 149 AD2d 461, 462 [1989],
quoting Trustees of Columbia Univ. v Mitchell/Giurgola Assoc., 109 AD2d 449.
453 [1985]). Here, the Lizza defendants established their entitlement to judgment
as a matter of law dismissing the common-law indemnification causes of action
by showing, prima facie, that any liability of GIC would be based on GIC's actual
wrongdoing, not on GIC's vicarious liability (see Guzman v Haven Plaza Hous.
Dev. Fund Co., 69 NY2d 559 [1987]; Reimold v Walden Terrace, Inc., 85 AD3d
1144 [201 l ]). The Lizza defendants also established their entitlement to judgment
as a matter of law dismissing the contribution causes of action by establishing,
prima facie, that they were not responsible for the happening of the accident
(see Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71 NY2d 599,
603 [1988]; Mack-Cali Realty, LP. v Everfoam Insulation Sys., Inc., l 10 AD3d
680, 682-683 [2013]; Marist Coll. v Chazen Envtl. Servs., inc., 84 AD3d 1181,
1183 [201 ll). In opposition, GlC failed to raise a triable issue of fact
[1985])"
(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 (Desena v.
North Shore Hebrew Academy, 119 AD3d 631 [2d Dept 2014]).
The plaintiff's complaint alleges that Camenter "struck, hit and make [sic] contact with
the Plaintiff, Kenneth Garofolo, with his fists and causing Plaintiff to fall to the ground, striking
head."
his While the complaint couches this claim against Carpenter in terms of negligence, "it
York"
is well settled that no cause of action for negligent assault exists in New (Barraza v.
Sambade, 212 AD2d 655 [2d Dept 1995]). Therefore, if Carpenter is found liable, it will be for
"negligent"
an intentional tort, not assault. By definition, then, his conduct was not solely a
"passive"
activity for which he might be able to seek indemnification. Instead, it involved some
degree of participation in the wrongdoing at issue which allegedly resulted in the plaintiff's
injuries. As such, as a matter of law, Carpenter cannot recover against The Last Train Stop, Inc.
for common law indemnification.
Common Law Contribution
With respect to Carpenter's claim sounding in common law contribution, The Last Train
Stop, Inc. established,primafacie, entitlement to summary judgment by demonstrating that it
was not responsible for the plaintiff's injuries. Rather, Carpenter striking the plaintiff was the
cause of plaintiff's injuries. Carpenter has not opposed The Last Train Stop, Inc.'s motion.
Therefore, he can be deemed to have admitted the allegations made in the motion, which include
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NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 01/04/2024
that he was responsible for the plaintiff (see ] 14 WoodbuK> Realty, LLC v. 10
solely striking
Bethpage Rd., LLC, 178 A.D.3d 757 [2d Dep't 2019]("Where a party fails to oppose some or
all matters advanced on a motion for summary judgment, the facts as alleged in the movant's
papers may be deemed admitted as there is, in effect, a concession that no question of fact
exists.")).
While plaintiff did oppose The Last Train Stop, Inc.'s motion2, his assertion that
summary judgment to dismiss Carpenter's claim for contribution should not be granted because
there is a question of fact as to whether the third-party defendant may have contributed to the
injuries by serving Carpenter alcohol when he was allegedly visibly intoxicated must fail. As
noted by The Last Train Stop, Inc., there are no allegations to this effect, nor any claims founded
on such allegations, in either the complaint or the third-party complaint, nor are there any such
allegations or claims in the plaintiff's bill of particulars. Notably, this action was commenced
approximately eight years ago. Given the lack of any such claim or allegation anywhere in the
pleadings and the age of this action, and in the face of Carpenter's de facto admission that he was
solely responsible for striking the plaintiff, this theory fails (see, e.g., Mainline Elec. Corp. v.
Pav-Lak industries, Inc., 40 AD3d 939 [2d Dep't 2007]).
Negligent Hiring
To the extent the third-party complaint asserts a claim for negligent hiring, supervision
and/or training as contributing to the underlying incident, The Last Train Stop, Inc. is entitled to
dismissal of such claim given the lack of any allegations in the third-party complaint in support
of its elements, which include that the employer knew or should have known of the worker's
propensities to engage in the conduct complained of (see Shu Yuan Huang v. St. .John's
2015]).3
Evangelical Lutheran Church, I29 AD3d 1053 [2d Dept Notably, no opposition by any
party has been offered on this issue.
2
The third-party defendants offer no support for their contention that the plaintiff has no standing to oppose their
motion. CPLR §3212(b) provides that a motion for summary judgment shall be denied if "any party shall show
fact."
facts sufficient to require a trial of any issue of
3 The defendants'
third-party motion on this particular issue is treated as one pursuant to CPLR §321 i given that
they argued, in effect, the insufficiency of the third-party pleading but did not offer any affirmative evidence in
support of summary _judgment.
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NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 01/04/2024
Statute of Limitations
The argument by Carpenter and The Last Train Stop, Inc. that Garofolo's claims are
barred by the one-year statute of limitations fails. Garofolo has presented sufficient evidence
that the additional time to commence an action under CPLR §215(8)(a) applies and that this
action was timely commenced within one year after the termination of Carpenter's criminal
action.
The remaining issues are rendered academic in light of the above.
Based on the foregoing, it is hereby
ORDERED that the motion by The Last Train Stop, Inc. i/s/h/a The Last Train Stop, Inc.
d/b/a Mahoney's Irish Pub & Restaurant and Mahoney's Irish Pub & Steakhouse (motion #3) is
granted, and the third-party complaint is dismissed as to this defendant; and it is further
ORDERED that the motion by Devin J. Carpenter to dismiss the complaint (motion #4) is
denied.
Dated: January 2024 ENTE
Poughkeepsi , NY
Ho . Davis, J.S.C.
Pursuant to CPLR Section 5513, an appeal as ofright must be taken within thirty days after service
by a party upon the appellant of a copy of the judgment or order appealed from and written notice
of its entry, except that when the appellant has served a copy of the judgment or order and written
notice of its entry, the appeal must be taken within thirty days thereof.
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Preview
FILED: DUTCHESS COUNTY CLERK 03/21/2024 04:41 PM INDEX NO. 2015-52210 NYSCEF DOC. NO. 148 RECEIVED NYSCEF: 03/21/2024 "C" Exhibit FILED: DUTCHESS COUNTY CLERK 03/21/2024 04:41 PM INDEX NO. 2015-52210 INDEX NO. 2015-52210 NYSCEF DOC. NO. 148 RECEIVED NYSCEF: 03/21/2024 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 01/04/2024 SUPREME COURT- STATE OF NEW YORK DUTCHESS COUNTY Present: Hon. THOMAS R. DAVIS, J.S.C. SUPREME COURT: DUTCHESS COUNTY ___________________________________________------_______________________x KENNETH GAROFOLO and JENNIFER DECISION AND ORDER GAROFOLO, (Motion Seq. #3 and #4) Plaintiffs -against- Index No.: 2015-52210 DEVIN J. CARPENTER, PREFERRED GROUP OF MANHATTAN, INC., CONSOLIDATED RAIL CORPORATION and CSX TRANSPORTATION, INC., Defendants. ________------._________..______________________________________________Ç DEVIN J. CARPENTER, Third-Party Plaintiff, -against- THE LAST TRAIN STOP, INC., THE LAST TRAIN STOP, INC. d/b/a MAHONEY'S IRISH PUB & STEAKHOUSE, P.O.K. TRAIN STATION, LLC, P.O.K. TRAIN STATION, LLC d/b/a MAHONEY'S IRISH PUB & STEAKHOUSE and MAHONEY'S IRISH PUB & STEAKHOUSE, Third-Party Defendants. _______________________________________________________________________x This is an action for personal injuries stemming from a physical altercation that occurred outside a bar and restaurant on November 22, 2014. By notice of motion dated September 7, 2023, the third-party defendant, The Last Train Stop, Inc.i/s/h/a The Last Train Stop, Inc. d/b/a Mahoney's Irish Pub & Restaurant and Mahoney's Irish Pub & Steakhouse, moves pursuant to CPLR 3212 and 3211 to dismiss the third-party complaint against it (motion sequence #3). By notice of motion dated September 15, 2023, the defendant/third-party plaintiff, Devin J. Carpenter, moves pursuant to CPLR 3211(a)(5) to dismiss the complaint against him (motion sequence #4). The following papers were read and considered in determining the motions: Page 1 of 6 1 of 6 FILED: DUTCHESS COUNTY CLERK 03/21/2024 04:41 PM INDEX NO. 2015-52210 INDEX NO. 2015-52210 NYSCEF DOC. NO. 148 RECEIVED NYSCEF: 03/21/2024 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 01/04/2024 Motion #3: Movant's motion papers identified as NYSCEF document numbers 84 through 105; Plaintiff s opposition papers identified as NYSCEF document numbers 125 through 132; Movant's reply papers identified as NYSCEF document number 134; Motion #4: Movant's motion papers identified as NYSCEF document numbers 109 through 117; Plaintiff's opposition papers identified as NYSCEF document numbers 125 through 132. Relevant Factual and Procedural Background On November 22, 2014, plaintiff, Kenneth Garofolo ("Garofolo") was a night manager at a bar and restaurant commonly known as Mahoney's Irish Pub & Steakhouse ("Mahoney's"). Defendant, Devin 1 Carpenter ("Carpenter"), was a patron who arrived, already intoxicated, at 11pm! Mahoney's sometime between and midnight and continued to purchase and consume alcohol while there. A little before 2:00am, a verbal altercation ensued between Carpenter and a third-person inside Mahoney's which resulted in multiple security personnel ("bouncers") removing Carpenter from the bar, outside into the parking lot. Garofolo also went outside and, according to a witness, was telling Carpenter (along with a bouncer) that he had to leave-he had overstayed his welcome. Also according to a witness, after Garofolo turned away from Carpenter, Carpenter punched Garofolo on the side of his face and/or head. Garofolo was knocked out, fell to the ground and hit his head. He was unconscious for a few minutes. He was taken to the hospital. He is alleged to have suffered, among other injuries, facial fractures and a traumatic brain injury. 1 1 I pm on November 2 I. 2022. Page 2 of 6 2 of 6 FILED: DUTCHESS COUNTY CLERK 03/21/2024 04:41 PM INDEX NO. 2015-52210 INDEX NO. 2015-52210 NYSCEF DOC. NO. 148 RECEIVED NYSCEF: 03/21/2024 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 01/04/2024 Carpenter was arrested. On December 1, 2016, he was convicted by plea to "Harassment Contact." 2"¹:Physical This action was commenced by the filing of a summons and complaint on December 28, "negligently" 2015. In his complaint, plaintiff alleges, inter alia, that Carpenter assaulted him. On January 24, 2020, Carpenter filed a third-party summons and complaint against several parties, among them, The Last Train Stop, Inc. (sued herein, as, among other names, Mahoney's). In his third-party complaint, Carpenter asserts claims for common law indemnification and/or contribution. Among the facts he alleges in his pleading are that the third-party defendants negligently hired, trained and/or supervised its employees (which would include the plaintiff). The Last Train Stop, Inc. now moves for, inter alia, summary judgment to dismiss the third-party complaint against it. It argues that Carpenter has no viable claim for common law indemnification, common law contribution or negligent hiring, that plaintiff did not suffer a injury" "grave under the Workman's Compensation Law, and that the plaintiff's claim is barred by the one-year statute of limitations. Carpenter also moves to dismiss the complaint as against him asserting that the plaintiff s claim is barred by the one-year statute of limitations. Discussion Common Law Indemnification "'Common-law indemnification is warranted where a defendant's role in causing vicarious" the plaintiffs injury is solely passive, and thus its liability is purely (Balladares v Southgate Owners Corp., 40 AD3d 667, 671 [2007]; see Dreyfus v MPCC Coq>., 124 AD3d 830, 830 [2015]). 'Since the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, it follows that a party who has itself actually participated to some doctrine' degree in the wrongdoing cannot receive the benefit of the (Desena v North Shore Hebrew Academy, 119 AD3d 631, 635 [2014] [internal quotation omitted])" marks (Board of Managers of Olive Park Condominium v. Maspeth Props.. LLC, 170 AD3d 645 [2d Dept 2019]). "The key element of a cause of action for common-law indemnification is not a duty running from the indemnitor to the injured party, but rather, is a separate duty owed the indemnitee by the indemnitor (see Raquet v Braun. 90 NY2d 177 Page 3 of 6 3 of 6 FILED: DUTCHESS COUNTY CLERK 03/21/2024 04:41 PM INDEX NO. 2015-52210 NO. INDEX 2015-52210 NYSCEF DOC. NO. 148 RECEIVED NYSCEF: 03/21/2024 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 01/04/2024 " [1997]; Lovino, Inc. v Lavallee Law Offs., 96 AD3d 909 [2012]). 'Since the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, it follows that a party who has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine' " (Henderson v Waldbaums, 149 AD2d 461, 462 [1989], quoting Trustees of Columbia Univ. v Mitchell/Giurgola Assoc., 109 AD2d 449. 453 [1985]). Here, the Lizza defendants established their entitlement to judgment as a matter of law dismissing the common-law indemnification causes of action by showing, prima facie, that any liability of GIC would be based on GIC's actual wrongdoing, not on GIC's vicarious liability (see Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559 [1987]; Reimold v Walden Terrace, Inc., 85 AD3d 1144 [201 l ]). The Lizza defendants also established their entitlement to judgment as a matter of law dismissing the contribution causes of action by establishing, prima facie, that they were not responsible for the happening of the accident (see Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71 NY2d 599, 603 [1988]; Mack-Cali Realty, LP. v Everfoam Insulation Sys., Inc., l 10 AD3d 680, 682-683 [2013]; Marist Coll. v Chazen Envtl. Servs., inc., 84 AD3d 1181, 1183 [201 ll). In opposition, GlC failed to raise a triable issue of fact [1985])" (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 (Desena v. North Shore Hebrew Academy, 119 AD3d 631 [2d Dept 2014]). The plaintiff's complaint alleges that Camenter "struck, hit and make [sic] contact with the Plaintiff, Kenneth Garofolo, with his fists and causing Plaintiff to fall to the ground, striking head." his While the complaint couches this claim against Carpenter in terms of negligence, "it York" is well settled that no cause of action for negligent assault exists in New (Barraza v. Sambade, 212 AD2d 655 [2d Dept 1995]). Therefore, if Carpenter is found liable, it will be for "negligent" an intentional tort, not assault. By definition, then, his conduct was not solely a "passive" activity for which he might be able to seek indemnification. Instead, it involved some degree of participation in the wrongdoing at issue which allegedly resulted in the plaintiff's injuries. As such, as a matter of law, Carpenter cannot recover against The Last Train Stop, Inc. for common law indemnification. Common Law Contribution With respect to Carpenter's claim sounding in common law contribution, The Last Train Stop, Inc. established,primafacie, entitlement to summary judgment by demonstrating that it was not responsible for the plaintiff's injuries. Rather, Carpenter striking the plaintiff was the cause of plaintiff's injuries. Carpenter has not opposed The Last Train Stop, Inc.'s motion. Therefore, he can be deemed to have admitted the allegations made in the motion, which include Page 4 of 6 4 of 6 FILED: DUTCHESS COUNTY CLERK 03/21/2024 04:41 PM INDEX NO. 2015-52210 INDEX NO. 2015-52210 NYSCEF DOC. NO. 148 RECEIVED NYSCEF: 03/21/2024 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 01/04/2024 that he was responsible for the plaintiff (see ] 14 WoodbuK> Realty, LLC v. 10 solely striking Bethpage Rd., LLC, 178 A.D.3d 757 [2d Dep't 2019]("Where a party fails to oppose some or all matters advanced on a motion for summary judgment, the facts as alleged in the movant's papers may be deemed admitted as there is, in effect, a concession that no question of fact exists.")). While plaintiff did oppose The Last Train Stop, Inc.'s motion2, his assertion that summary judgment to dismiss Carpenter's claim for contribution should not be granted because there is a question of fact as to whether the third-party defendant may have contributed to the injuries by serving Carpenter alcohol when he was allegedly visibly intoxicated must fail. As noted by The Last Train Stop, Inc., there are no allegations to this effect, nor any claims founded on such allegations, in either the complaint or the third-party complaint, nor are there any such allegations or claims in the plaintiff's bill of particulars. Notably, this action was commenced approximately eight years ago. Given the lack of any such claim or allegation anywhere in the pleadings and the age of this action, and in the face of Carpenter's de facto admission that he was solely responsible for striking the plaintiff, this theory fails (see, e.g., Mainline Elec. Corp. v. Pav-Lak industries, Inc., 40 AD3d 939 [2d Dep't 2007]). Negligent Hiring To the extent the third-party complaint asserts a claim for negligent hiring, supervision and/or training as contributing to the underlying incident, The Last Train Stop, Inc. is entitled to dismissal of such claim given the lack of any allegations in the third-party complaint in support of its elements, which include that the employer knew or should have known of the worker's propensities to engage in the conduct complained of (see Shu Yuan Huang v. St. .John's 2015]).3 Evangelical Lutheran Church, I29 AD3d 1053 [2d Dept Notably, no opposition by any party has been offered on this issue. 2 The third-party defendants offer no support for their contention that the plaintiff has no standing to oppose their motion. CPLR §3212(b) provides that a motion for summary judgment shall be denied if "any party shall show fact." facts sufficient to require a trial of any issue of 3 The defendants' third-party motion on this particular issue is treated as one pursuant to CPLR §321 i given that they argued, in effect, the insufficiency of the third-party pleading but did not offer any affirmative evidence in support of summary _judgment. Page 5 of 6 5 of 6 FILED: DUTCHESS COUNTY CLERK 03/21/2024 04:41 PM INDEX NO. 2015-52210 INDEX NO. 2015-52210 NYSCEF DOC. NO. 148 RECEIVED NYSCEF: 03/21/2024 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 01/04/2024 Statute of Limitations The argument by Carpenter and The Last Train Stop, Inc. that Garofolo's claims are barred by the one-year statute of limitations fails. Garofolo has presented sufficient evidence that the additional time to commence an action under CPLR §215(8)(a) applies and that this action was timely commenced within one year after the termination of Carpenter's criminal action. The remaining issues are rendered academic in light of the above. Based on the foregoing, it is hereby ORDERED that the motion by The Last Train Stop, Inc. i/s/h/a The Last Train Stop, Inc. d/b/a Mahoney's Irish Pub & Restaurant and Mahoney's Irish Pub & Steakhouse (motion #3) is granted, and the third-party complaint is dismissed as to this defendant; and it is further ORDERED that the motion by Devin J. Carpenter to dismiss the complaint (motion #4) is denied. Dated: January 2024 ENTE Poughkeepsi , NY Ho . Davis, J.S.C. Pursuant to CPLR Section 5513, an appeal as ofright must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof. Page 6 of 6 6 of 6