Tauman v. Gambino

Full title: Ferne J. Tauman, respondent, v. Maria C. Gambino, appellant, et al.…

Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Jan 21, 2015

2015 N.Y. Slip Op. 524 (N.Y. App. Div. 2015)

Opinion

2014-00196

01-21-2015

Ferne J. Tauman, respondent, v. Maria C. Gambino, appellant, et al., defendant.

Rossi & Crowley, LLP, Douglaston, N.Y. (Thomas J. Rossi and Sally Sancimino of counsel), for appellant. Scott Baron & Associates, P.C., Howard Beach, N.Y. (James J. Cleary, Jr., of counsel), for respondent.

WILLIAM F. MASTRO, J.P.

LEONARD B. AUSTIN

JOSEPH J. MALTESE

BETSY BARROS, JJ. (Index No. 30130/08)

Rossi & Crowley, LLP, Douglaston, N.Y. (Thomas J. Rossi and Sally Sancimino of counsel), for appellant.

Scott Baron & Associates, P.C., Howard Beach, N.Y. (James J. Cleary, Jr., of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Maria C. Gambino appeals from so much of an order of the Supreme Court, Queens County (Flug, J.), entered October 3, 2013, as denied, as academic, her motion to dismiss the complaint pursuant to CPLR 3211(a).

ORDERED that the order is affirmed insofar as appealed from, with costs.

Contrary to the contention of the defendant Maria C. Gambino (hereinafter the appellant), the Supreme Court did not err in denying, as academic, her motion to dismiss the complaint pursuant to CPLR 3211(a). The record demonstrates, and the parties concede, that the complaint that was served on the appellant had already been dismissed under the same index number by a prior order of the same court. Accordingly, since the action had already been dismissed, the court acted appropriately in denying, as academic, the appellant's motion to dismiss it again.

We do not consider the appellant's remaining contentions regarding the propriety of that portion of the Supreme Court's order which authorized the plaintiff to re-commence an action against her under a new index number, since the appellant's notice of appeal indicates that she did not appeal from that part of the order (see W. Park Assoc., Inc. v Everest Natl. Ins. Co., 113 AD3d 38, 43; Hunt v Raymour & Flanigan, 105 AD3d 1005, 1006; Levitt v Levitt, 97 AD3d 543, 545-546; Ropiecki v Ropiecki, 94 AD3d 734, 735; City of Mount Vernon v Mount Vernon Hous. Auth., 235 AD2d 516, 517).

MASTRO, J.P., AUSTIN, MALTESE and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court