Opinion
March 7, 2000
Order, Supreme Court, New York County (Elliott Wilk, J.), entered October 18, 1999, which "held in abeyance" appellant's motion for summary judgment dismissing the complaint against him "pending the completion of [appellant's] deposition, whereupon [appellant] may renew the motion", unanimously affirmed, without costs.
Phillip M. Chiappone, for plaintiffs-respondents.
Ray Beckerman, for defendant-appellant.
NARDELLI, J.P., WILLIAMS, ELLERIN, WALLACH, SAXE, JJ.
We deem the motion court's disposition, declining to grant defendant-appellant broker's motion for summary judgment dismissing the complaint against him and extending leave to renew the motion upon completion of movant's deposition, to be an appealable denial of the motion. This disposition was proper given the present state of the record. The evidence in support of plaintiffs' claim that defendant broker's investment choices were excessively risky, to the extent developed at this juncture when potentially crucial discovery has yet to be afforded plaintiffs, suggests that the circumstances of this case may be distinguishable from those obtaining in the cases cited by defendant, wherein failure to comply with a provision requiring that objections to trading activity be submitted in writing within several days of receipt of an account statement was deemed dispositive (see, e.g., Modern Settings, Inc. v. Prudential Bache Sec., Inc., 936 F.2d 640).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.