Opinion
2014-04-29
WATHNE IMPORTS, LTD., Plaintiff–Appellant, v. PRL USA, INC., et al., Defendants–Respondents.
Manatt, Phelps & Phillips, LLP, New York (Thomas C. Morrison of counsel), for appellant. Kelly Drye & Warren LLP, (Robert I. Steiner of counsel), for respondents.
Manatt, Phelps & Phillips, LLP, New York (Thomas C. Morrison of counsel), for appellant. Kelly Drye & Warren LLP, (Robert I. Steiner of counsel), for respondents.
GONZALEZ, P.J., SWEENY, MOSKOWITZ, RICHTER, CLARK, JJ.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered November 12, 2013, which granted defendants' motion in limine to preclude evidence on the claim relating to the Polo Ralph Lauren trademark, unanimously affirmed, with costs.
The Polo Ralph Lauren trademark claim was dismissed more than five years ago in an order that granted in large part defendants' motion for summary judgment dismissing the complaint. The motion court dismissed all but certain specified claims, and, on appeal, this Court modified to deny the motion as to certain of those claims (63 A.D.3d 476, 881 N.Y.S.2d 402 [1st Dept.2009] ). Neither the motion court's nor this Court's order mentions the Polo Ralph Lauren claim by name. Contrary to plaintiff's contention, the motion court did not effectively dismiss a claim by granting the instant in limine motion.
Notwithstanding that the potential dismissal of all its claims was before the motion court on defendants' summary judgment motion, plaintiff failed to raise any argument about the apparent dismissal of the Polo Ralph Lauren claim in its appeal from the order that decided the motion; nor did it take action to clarify any alleged discrepancy between the motion court's reasoning and the terms of its order. Thus, plaintiff has waived its right to challenge the scope of the order ( see U.S. Bank N.A. v. APP Intl. Fin. Co., B.V., 100 A.D.3d 179, 952 N.Y.S.2d 533 [1st Dept.2012]; Goncalves v. Stuyvesant Dev. Assoc., 244 A.D.2d 267, 664 N.Y.S.2d 764 [1st Dept.1997] ).