Dolan v McCauley

Dolan v McCauley 2006 NY Slip Op 07138 [33 AD3d 582] October 3, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 13, 2006

Timothy J. Dolan et al., Respondents,
v
Keith McCauley et al., Respondents, and Lily Flanagan's, Appellant.

—[*1]In an action to recover damages for personal injuries, the defendant Lily Flanagan's appeals from an order of the Supreme Court, Suffolk County (Whelan, J.), dated August 18, 2005, which denied that branch of its motion which was for summary judgment dismissing the cause of action alleging a violation of General Obligations Law § 11-101 (1) and all cross claims based upon that cause of action insofar as asserted against it.

Ordered that the order is affirmed, with costs to the plaintiffs.

The appellant failed to establish its entitlement to judgment as a matter of law with respect to the cause of action alleging a violation of General Obligations Law § 11-101 (1) and all cross claims based on that cause of action insofar as asserted against it (see Dollar v O'Hearn, 248 AD2d 886, 887 [1998]).

That branch of the appellant's motion which was for summary judgment dismissing the cause of action alleging common-law negligence remains pending and undecided, and therefore the appellant's contentions regarding that branch of the motion are not properly before this Court (see Witkowski v Escobar, 28 AD3d 543 [2006]; Levy v Levy, 20 AD3d 511 [2005]; Katz v Katz, 68 AD2d 536, 542-543 [1979]). Crane, J.P., Goldstein, Rivera and Lifson, JJ., concur.