Chalasani v. State Bank of India

283 A.D.2d 601, 724 N.Y.S.2d 912, 2001 N.Y. App. Div. LEXIS 5481

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 29, 2001
• Status: Published

Opinion

—In an action, inter alia, for an accounting, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (McCarty, J.), dated May 23, 2000, as, upon granting that branch of its motion which was for leave to reargue, adhered to the determination in an order dated March 3, 2000, denying its motion for summary judgment dismissing the complaint, and failed to determine that branch of the motion which was to limit the issues at trial.

Ordered that the appeal from so much of the order as failed to determine that branch of the motion which was to limit the issues at trial is dismissed; and it is further,

Ordered that the order is reversed insofar as reviewed, on the law, the order dated March 3, 2000, is vacated, the motion for summary judgment is granted, and the complaint is dismissed; and it is further,

Ordered that defendant is awarded one bill of costs.

In response to the defendant’s prima facie showing of its entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact (see, Freedman v Chemical Constr. Corp., 43 NY2d 260). Accordingly, the defendant is entitled to summary judgment (see, Zuckerman v City of New York, 49 NY2d 557).

The defendant’s appeal from so much of the order as failed to determine that branch of the motion which was to limit the issues at trial must be dismissed, as that branch of the motion remains pending and undecided (see, Katz v Katz, 68 AD2d 536, 543). In any event, in light of our determination herein, this issue is academic. Santucci, J. P., Goldstein, Feuerstein and Crane, JJ., concur.