Barry/Dave/Glenn, Inc. v. Salkowitz

181 A.D.2d 754

Opinion

— In an action to recover damages for injury to property and loss of business, the defendants Kenneth J. Herman, Inc., and FRP Sheet Metal Contracting Corp. separately appeal from so much of an order of the Supreme Court, Nassau County (Burke, J.), entered May 2, 1990, as, after a pretrial conference, granted the plaintiff’s oral application to strike the case from the trial calendar and denied the appellants’ oral applications to preclude the plaintiff from presenting certain evidence at the time of trial and to dismiss the action for the plaintiff’s failure to prosecute, with leave to the appellants to renew those applications on written papers.

Ordered that the appeals are dismissed, without costs or disbursements.

An appeal to the Appellate Division may be taken as of right from a final or interlocutory judgment (see, CPLR 5701 [a] [1]), or from an order deciding a motion made upon notice (see, CPLR 5701 [a] [2]; see, Delloiaco v City of New York, 174 AD2d 705; Blasie v County of Westchester, 169 AD2d 697; Arslanian v Volkswagen of Am., 121 AD2d 492; Cohalan v Johnson Elec. Constr. Corp., 105 AD2d 770). However, the order appealed from did not decide a motion made upon notice. No application has been made for permission to appeal. In view of the foregoing, the appeals are dismissed (see, CPLR 5701 [c]). In light of this disposition, we do not pass on the merits of the appellants’ arguments. Bracken, J. P., Lawrence, Eiber and Santucci, JJ., concur.