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Edgett v. North Fork Bank

Appellate Division of the Supreme Court of New York, Fourth Department
Apr 30, 2010
72 A.D.3d 1635 (N.Y. App. Div. 2010)

Opinion

No. CA 09-02526.

April 30, 2010.

Appeal from an order of the Supreme Court, Herkimer County (Michael E. Daley, J.), entered February 17, 2009 in a personal injury action. The order, insofar as appealed from, denied the motion of third-party defendant Northway Exchange Auto Auction to dismiss the third amended third-party complaint against it.

CRUSER, MITCHELL NOVITZ, LLP, MELVILLE (BETH S. GEREG OF COUNSEL), FOR THIRD-PARTY DEFENDANT-APPELLANT. STOKES ROBERTS WAGNER, P.C., ITHACA (PAUL E. WAGNER OF COUNSEL), FOR THIRD-PARTY PLAINTIFF-RESPONDENT.

CONWAY KIRBY, LLP, LATHAM (ANDREW W. KIRBY OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.

Present: Martoche, J.P., Smith, Fahey, Peradotto and Green, JJ.


It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: In an action to recover damages for personal injuries sustained in a motor vehicle accident, third-party defendant Northway Exchange Auto Auction (Northway) appeals from an order that, inter alia, denied its motion for summary judgment dismissing the third amended third-party complaint against it. Supreme Court properly denied the motion, regardless of its merits, inasmuch as Northway failed to provide in support of its motion a copy of all of the third-party pleadings ( see CPLR 3212 [b]; D.J. Enters. of W. N.Y. v Benderson, 294 AD2d 825).

We note in addition that, although defendant North Fork Bank (North Fork) purports to cross-appeal from those parts of the order denying its cross motion for summary judgment dismissing the fourth amended complaint against it and for summary judgment on the third amended third-party complaint against Northway, that cross appeal was deemed dismissed nine months after the service of the notice of appeal based on North Fork's failure to perfect it ( see 22 NYCRR 1000.12 [b]). North Fork has not moved to vacate that dismissal ( see 22 NYCRR 1000.13 [g]), and thus its requests for affirmative relief are not before us.


Summaries of

Edgett v. North Fork Bank

Appellate Division of the Supreme Court of New York, Fourth Department
Apr 30, 2010
72 A.D.3d 1635 (N.Y. App. Div. 2010)
Case details for

Edgett v. North Fork Bank

Case Details

Full title:MICHELLE EDGETT, Individually and as Parent and Natural Guardian of KIYA…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Apr 30, 2010

Citations

72 A.D.3d 1635 (N.Y. App. Div. 2010)
2010 N.Y. Slip Op. 3701
899 N.Y.S.2d 691

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