112 Duane Associates, LLC v. Malkani

296 A.D.2d 388, 745 N.Y.S.2d 430, 2002 N.Y. App. Div. LEXIS 7018

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 2002
• Status: Published

Opinion

In an action to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Kings County (Mason, J.), dated June 22, 2001, which denied that branch of her motion which was for leave to renew the branch of the plaintiffs prior motion which was for summary judgment dismissing the fifth counterclaim, which was determined in an order of the same court, dated December 15, 2000, and failed to determine that branch of her motion which was to impose a sanction upon the plaintiff.

Ordered that the appeal from so much of the order as failed to determine that branch of the motion which was to impose a sanction against the plaintiff is dismissed; and it is further,

Ordered that the order is affirmed insofar as reviewed; and it is further,

Ordered that one bill of costs is awarded to the plaintiff

Under the circumstances of this case, the Supreme Court properly denied that branch of the motion which was for leave to renew (see CPLR 2221 [e] [2]).

Additionally, the defendant’s appeal from so much of the order as failed to determine that branch of the motion which was to impose a sanction upon the plaintiff must be dismissed, as that branch of the motion remains pending and undecided (see Katz v Katz, 68 AD2d 536, 543). Florio, J.P., Feuerstein, O’Brien and Adams, JJ., concur.