Smisloff v Stott

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Smisloff v Stott 2015 NY Slip Op 08556 Decided on November 20, 2015 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 20, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, CARNI, WHALEN, AND DEJOSEPH, JJ.
1151 CA 14-02066

[*1]JAMES J. SMISLOFF, PLAINTIFF-RESPONDENT,

v

DAVID P. STOTT, JR., 1390 PITTSFORD-MENDON ROAD, LLC, AND NORTHCOAST WINDOW CLEANING LIMITED LIABILITY COMPANY, DEFENDANTS-APPELLANTS. ———————————————————————— DAVID P. STOTT, JR., AND 1390 PITTSFORD-MENDON ROAD, LLC, THIRD-PARTY PLAINTIFFS-APPELLANTS, GREGG SMISLOFF, THIRD-PARTY DEFENDANT-RESPONDENT. (APPEAL NO. 2.)



ELLIOTT STERN CALABRESE, LLP, ROCHESTER (DAVID S. STERN OF COUNSEL), FOR DEFENDANTS-APPELLANTS AND THIRD-PARTY PLAINTIFFS-APPELLANTS.

LECLAIR KORONA GIORDANO COLE LLP, ROCHESTER (JEREMY M. SHER OF COUNSEL), FOR PLAINTIFF-RESPONDENT AND THIRD-PARTY DEFENDANT RESPONDENT.



Appeal from a judgment of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), entered August 14, 2014. The judgment awarded plaintiff money damages of $72,800, plus interest, costs and disbursements.

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

Memorandum: Defendants-third-party plaintiffs (defendants) appeal from a judgment that, inter alia, dismissed pursuant to CPLR 3211 (a) (7) their third-party "counter-claim[s] and cause[s] of action" (counterclaims) asserting tortious interference of contract and conversion. Inasmuch as defendants failed to oppose that part of plaintiff's and third-party defendant's motion seeking to dismiss those counterclaims, defendants' contentions with respect thereto are not preserved for our review (see Ladd v Hudson Val. Ambulance Serv ., 142 AD2d 17, 21; see generally Ciesinski v Town of Aurora , 202 AD2d 984, 985).

Entered: November 20, 2015

Frances E. Cafarell

Clerk of the Court