Beary v. Schwimmer

Appellate Division of the Supreme Court of New York

Beary v. Schwimmer

44 A.D.2d 833, 355 N.Y.S.2d 620, 1974 N.Y. App. Div. LEXIS 5031

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 13, 1974

StatusPublished

Cited by2 cases

This text of 44 A.D.2d 833 (Beary v. Schwimmer) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Beary v. Schwimmer, 44 A.D.2d 833, 355 N.Y.S.2d 620, 1974 N.Y. App. Div. LEXIS 5031 (N.Y. Ct. App. 1974).

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Opinion

In an action inter alia for libel, plaintiff Beary appeals, as limited by Ms notice of appeal and his briefs, from so much of an order of the Supreme Court, Queens County, entered December 13, 1972, as granted the branch of a motion by defendant which was to dismiss the first cause of action in the complaint on the ground it did not state a cause of action (CPLR 3211, subd. [a], par. 7). Appeal dismissed, with $20 costs and disbursements. The order appealed from granted appellant leave to replead. Appellant, subsequent to the filing of his notice of appeal, availed himself of the leave to replead and is therefore now precluded from seeking a review of the order (Kriger v. Industrial Rehabilitation Corp., 8 A D 2d 29, affd. 7 N Y 2d 958; Wilde v. Caron Corp., 20 A D 2d 931; Cioffi v. City of New York, 14 A D 2d 741; see, also, 10 Carmody-Wait 2d, New York Practice, § 70.82). Shapiro, Acting P. J., Cohalan, Christ, Benjamin and Munder, JJ., concur.

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In an action inter alia for libel, plaintiff Beary appeals, as limited by Ms notice of appeal and his briefs, from so much of an order of the Supreme Court, Queens County, entered December 13, 1972, as granted the branch of a motion by defendant which was to dismiss the first cause of action in the complaint on the ground it did not state a cause of action (CPLR 3211, subd. [a], par. 7). Appeal dismissed, with $20 costs and disbursements. The order appealed from granted appellant leave to replead. Appellant, subsequent to the filing of his notice of appeal, availed himself of the leave to replead and is therefore now precluded from seeking a review of the order (Kriger v. Industrial Rehabilitation Corp., 8 A D 2d 29, affd. 7 N Y 2d 958; Wilde v. Caron Corp., 20 A D 2d 931; Cioffi v. City of New York, 14 A D 2d 741; see, also, 10 Carmody-Wait 2d, New York Practice, § 70.82). Shapiro, Acting P. J., Cohalan, Christ, Benjamin and Munder, JJ., concur.

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Bluebook (online)

44 A.D.2d 833, 355 N.Y.S.2d 620, 1974 N.Y. App. Div. LEXIS 5031, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beary-v-schwimmer-nyappdiv-1974.

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