Opinion
March 13, 1989
Appeal from the Supreme Court, Nassau County.
Upon the papers submitted in support of the motion and cross motion and in opposition thereto, it is,
Ordered that that branch of plaintiff's motion which was to strike the "Brief and Appendix" of the defendant Southland Corporation, doing business as "7/11" and/or "Seven-Eleven", is granted; that branch of the plaintiff's motion which sought costs with respect to this motion, including reasonable attorney's fees, is granted only to the extent that the plaintiff is awarded $100 costs to be paid by the defendant Southland Corporation, doing business as "7/11" and/or "Seven-Eleven"; and the other branches of the plaintiff's motion are denied as academic; and it is further,
Ordered that the cross motion of the defendant Southland Corporation, doing business as "7/11" and/or "Seven-Eleven", is denied.
We initially note that in this case, counsel for the defendant Southland Corporation, doing business as "7/11" and/or "Seven-Eleven" (hereinafter Southland), has pursued a dilatory course of conduct with respect to the service of their papers in this matter in general. Further, counsel has offered no reasonable excuse for their five-month delay in filing their respondent's brief. Moreover, the cross motion is specious. The plaintiff's record on appeal properly included the April 6, 1987 judgment they sought review of upon their appeal. The plaintiff was not required to include the subsequent order, dated February 1, 1988 which denied his motion for leave to reargue and/or renew (see, CPLR 5517 [a] [3]; Harper v. Prudential Ins. Co., 102 A.D.2d 863). Contrary to Southland's specific contention, in its February 1, 1988 order the Supreme Court did not, in effect, grant reargument, and then adhere to its original determination. In any event, even if this February 1, 1988 order were so construed, CPLR 5517 (a) does not mandate review, but merely indicates that this court "may" review such a subsequent order and the February 1, 1988 order, for which a notice of appeal was not filed, would not render academic the appeal from the April 6, 1987 judgment (see, CPLR 5517 [a] [1]; Calvo v. Peros, 49 A.D.2d 744). Thompson, J.P., Lawrence, Rubin and Eiber, JJ., concur.