Franqui v. City of New York

163 A.D.2d 45, 557 N.Y.S.2d 80, 1990 N.Y. App. Div. LEXIS 8095

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 3, 1990
• Status: Published

Opinion

Order, Supreme Court, New York County (Robert E. White, J.), entered January 10, 1990, which upon renewal and/or reargument, granted, on default, the cross motion of defendant New York City Housing Authority for summary judgment dismissing the complaint and dismissed the action, without prejudice, unanimously modified, on the law, to eliminate the "without prejudice” provision and, except as thus modified, affirmed, without costs or disbursements. Appeal from the order of the same court and Justice, entered on or about March 15, 1989, which, inter alia, denied the Housing Authority’s cross motion for summary judgment dismissing the complaint, dismissed as subsumed by the appeal from the aforesaid order.

In a prior decision in this same case, involving defendant New York Telephone Company (Franqui v City of New York, 152 AD2d 482), we concluded that the deposition testimony of plaintiffs’ notice witness was insufficient to demonstrate an issue as to constructive notice. Accordingly, we granted summary judgment and dismissed the complaint as against that defendant. On the basis of that determination, the Housing Authority sought renewal/reargument of the IAS court’s earlier order, previously appealed by New York Telephone Company, which had denied both defendants’ summary judgment motions. Plaintiffs failed to oppose the renewal/reargument motion, as a result of which the court granted the motion and dismissed the action on default. The dismissal, however, was "without prejudice.” This was error. Since it is clear that plaintiffs are unable to prove notice, their action is demonstrably without merit and should have been dismissed without condition. We modify accordingly. Concur—Kupferman, J. P., Sullivan, Carro and Milonas, JJ.