Opinion
May 4, 1978
Order of the Supreme Court, New York County, entered December 19, 1977, which granted a continuance to permit discovery as to jurisdiction, directed a reference as to such issue and held final determination of defendants-appellants' motion to dismiss for lack of personal jurisdiction (CPLR 3211, subd [a], par 8) in abeyance pending the referee's report and, further, held defendants-appellants' motion to dismiss the complaint for insufficiency under CPLR 3016 (subd [b]) in abeyance pending final determination of the jurisdictional question, unanimously affirmed, without costs or disbursements. We find that it was proper for the court to grant a continuance of the CPLR 3211 (subd [a], par 8) motion pending discovery proceedings (CPLR 3211, subd [d]) by plaintiff and hearing and report by referee (Peterson v Spartan Ind., 33 N.Y.2d 463; see, also, Amigo Foods Corp. v Marine Midland Bank-N.Y., 39 N.Y.2d 391). In affirming the order, we note the request of counsel for each litigant that to avoid further delay and another appeal we should decide the CPLR 3016 (subd [b]) motion notwithstanding plaintiffs' failure to file a cross appeal from Special Term's determination to hold that motion in abeyance until the jurisdictional question is decided. Inasmuch as the CPLR 3016 (subd [b]) issue is not properly before us in the absence of such cross appeal, we have declined to modify the order to dispose of that motion. But, in examining the complaint, we do not perceive any infirmity or deficiency therein. (Wilhelmina Models v Faberge, Inc., 55 A.D.2d 520; see, also, Daukas v Shearson, Hammill Co., 26 A.D.2d 526.)
Concur — Lupiano, J.P., Birns, Lane, Markewich and Sandler, JJ.