Opinion
2022-64378 Index 31809/2009
04-13-2022
Marco Antonio Alicea, et al., plaintiffs-respondents, v. Medjugorje Realty, LLC, et al., defendants-respondents Imperial Elevator Corporation, defendant/fifth-party plaintiff-appellant-respondent, New Cingular Wireless, PCS, LLC, et al., defendants/third-party plaintiffs-respondents-appellants Odyssia Global Communications, third-party defendant/fourth-party plaintiff/fifth-party defendant-respondent; Preferred Builders, Inc., fourth-party defendant/fifth-party defendant-respondent. Motion Nos. 2018-14101, 2018-14828
Unpublished Opinion
MOTION DECISION
ROBERT J. MILLER, J.P., JOSEPH J. MALTESE, PAUL WOOTEN JOSEPH A. ZAYAS, JJ.
DECISION & ORDER ON MOTION
Appeal and cross appeal from an order of the Supreme Court, Kings County, dated September 11, 2018, and appeal from a judgment of the same court entered October 26, 2018. The appeal from the judgment was deemed dismissed pursuant to 22 NYCRR 1250.10(a). By decision and order on motion of this Court dated October 21, 2021, the parties to the appeal and cross appeal from the order were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal by Imperial Elevator Corporation from so much of the order as granted that branch of the motion by Preferred Builders, Inc., which was for summary judgment dismissing the fifth-party complaint insofar as asserted against it, in effect, on the ground that the right of direct appeal from that portion of the order terminated upon entry of the judgment. Motion by Imperial Elevator Corporation, in effect, pursuant to 22 NYCRR 1250.10(c) to vacate the dismissal of the appeal from the judgment, to consolidate the appeal and cross appeal from the order with the appeal from the judgment, and for leave to file a supplemental joint record containing the judgment and the notice of appeal from the judgment.
Now, upon the order to show cause and the papers filed in response thereto, and upon the papers filed in support of the motion by Imperial Elevator Corporation and no papers having been filed in opposition or in relation thereto, it is
ORDERED that the motion by Imperial Elevator Corporation is granted, the dismissal of the appeal from the judgment pursuant to 22 NYCRR 1250.10(a) is vacated, the appeal and cross appeal from the order are consolidated with the appeal from the judgment, on or before May 13, 2022, the parties shall upload through the digital portal on this Court's website digital copies of the joint record and briefs which contain Appellate Division Docket No. 2018-14828 in addition to Appellate Division Docket No., and on or before May 13, 2022, Imperial Elevator Corporation shall serve a supplemental joint record which contains the judgment and the notice of appeal from the judgment and upload through the digital portal on this Court's website a digital copy of the supplemental joint record; and it is further, ORDERED that the motion to dismiss the appeal from so much of the order as granted that branch of the motion by Preferred Builders, Inc., which was for summary judgment dismissing the fifth-party complaint insofar as asserted against it is held in abeyance and referred to the panel of Justices hearing the appeals and cross appeal for determination upon the argument or submission thereof.
MILLER, J.P., MALTESE, WOOTEN AND ZAYAS, JJ., CONCUR.