Martinez v Kaz USA, Inc.

Martinez v Kaz USA, Inc. 2020 NY Slip Op 02775 Decided on May 13, 2020 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 May 13, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
COLLEEN D. DUFFY
BETSY BARROS
FRANCESCA E. CONNOLLY, JJ.
2017-13093
2018-05236
(Index No. 11203/14)

[*1]Victor Martinez, etc., plaintiff third-party defendant-appellant,

v

Kaz USA, Incorporated, et al., defendants third-party plaintiffs-respondents; Michelle Martinez, third-party defendant.

Kantrowitz, Goldhamer & Graifman, P.C., Chestnut Ridge, NY (Louis B. Gerber of counsel), for plaintiff third-party defendant-appellant.

Rivkin Radler LLP, Uniondale, NY (Cheryl F. Korman and Merril S. Biscone of counsel), for defendants third-party plaintiffs-respondents.

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, etc., the plaintiff third-party defendant appeals from (1) an order of the Supreme Court, Kings County (David B. Vaughan, J.), dated October 18, 2017, and (2) an order of the same court dated January 24, 2018. The order dated October 18, 2017, insofar as appealed from, denied that branch of the motion of the plaintiff third-party defendant which was pursuant to CPLR 3211(a)(7) to dismiss the third-party complaint insofar as asserted against him, without prejudice to renew upon the completion of discovery. The order dated January 24, 2018, denied the motion of the plaintiff third-party defendant for leave to reargue that branch of his prior motion which was pursuant to CPLR 3211(a)(7) to dismiss the third-party complaint insofar as asserted against him.

ORDERED that the appeals are dismissed, without costs or disbursements.

In the order dated October 18, 2017, the Supreme Court denied that branch of the appellant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the third-party complaint insofar as asserted against him for failure to state a cause of action, without prejudice to renew upon the completion of discovery. Following the completion of discovery, the appellant moved for summary judgment dismissing the third-party complaint insofar as asserted against him on the ground that it failed to state a cause of action. In an order dated January 31, 2019, the court denied the motion and the appellant has appealed from that order. The appeal from the order dated October 18, 2017, has been rendered academic in light of our determination on the appeal from the order dated January 31, 2019 (see Martinez v Kaz USA, Incorporated, ___ AD3d ___ [Appellate Division Docket No. 2019-03572; decided herewith]).

The appeal from the order dated January 24, 2018, must be dismissed, as no appeal lies from an order denying reargument (see Burlington Ins. Co. v Pinnacle Demolition & Envtl. Servs. Corp., 176 AD3d 1026, 1026; Empire Natl. Bank v Genard Group, Inc., 170 AD3d 959, 959).

DILLON, J.P., DUFFY, BARROS and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court