Dolan v. McCauley

33 A.D.3d 582, 821 N.Y.S.2d 464

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 3, 2006
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant Lily Flanagan’s appeals from an order of the Supreme Court, Suffolk County (Whelan, J.), dated August 18, 2005, which denied that branch of its motion which was for summary judgment dismissing the cause of action alleging a violation of General Obligations Law § 11-101 (1) and all cross claims based upon that cause of action insofar as asserted against it.

Ordered that the order is affirmed, with costs to the plaintiffs.

The appellant failed to establish its entitlement to judgment as a matter of law with respect to the cause of action alleging a violation of General Obligations Law § 11-101 (1) and all cross claims based on that cause of action insofar as asserted against it (see Dollar v O’Hearn, 248 AD2d 886, 887 [1998]).

That branch of the appellant’s motion which was for summary judgment dismissing the cause of action alleging common-law negligence remains pending and undecided, and therefore the appellant’s contentions regarding that branch of the motion are not properly before this Court (see Witkowski v Escobar, 28 AJDSd 543 [2006]; Levy v Levy, 20 AD3d 511 [2005]; Katz v Katz, 68 AD2d 536, 542-543 [1979]). Crane, J.P., Goldstein, Rivera and Lifson, JJ., concur.