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.