New York Schools Insurance Reciprocal v Gugliotti Associates, Inc.

New York Schools Ins. Reciprocal v Gugliotti Assoc., Inc. 2006 NY Slip Op 04816 [17 AD3d 1176] Decided on June 13, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 13, 2006
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
FRED T. SANTUCCI, J.P.
PETER B. SKELOS
ROBERT A. LIFSON
JOSEPH COVELLO, JJ.
2005-01208 DECISION & ORDER

[*1]New York Schools Insurance Reciprocal, etc., appellant,

v

Gugliotti Associates, Inc., respondent, et al., defendant. (Index No. 10170/01)




Congon, Flaherty, O'Callaghan, Reid, Donlon, Travis &
Fishlinger, Uniondale, N.Y. (Kathleen D. Foley of counsel), for
appellant.
Torino & Bernstein, P.C., Mineola, N.Y. (Mitchell
Teitelbaum of counsel), for respondent.

In a subrogation action to recover benefits paid under a policy of insurance, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Woodard, J.), dated January 11, 2005, as granted that branch of the cross motion of the defendant Gugliotti Associates, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the cross motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Gugliotti Associates, Inc., is denied, and the complaint is reinstated insofar as asserted against that defendant.

The defendant Gugliotti Associates, Inc. (hereinafter Gugliotti), satisfied its prima facie burden of demonstrating its entitlement to judgment as a matter of law. In opposition, the plaintiff raised a triable issue of fact. Accordingly, the Supreme Court should have denied that branch of Gugliotti's cross motion which was for summary judgment dismissing the complaint insofar as asserted against it. [*2]

To the extent that the plaintiff seeks relief regarding its separate motion, inter alia, to preclude certain expert testimony, we note that the Supreme Court did not decide that motion. Thus, we do not address the plaintiff's contention regarding that issue, as it remains pending and undecided (see Katz v Katz, 68 AD2d 536).
SANTUCCI, J.P., SKELOS, LIFSON and COVELLO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court