Futterman v. Liebowitz Kosher Meats & Poultry

201 A.D.2d 615, 609 N.Y.S.2d 834, 1994 N.Y. App. Div. LEXIS 1448

Opinion

In an action to recover damages for personal injuries, the defendants Liebowitz Kosher Meats and Poultry and Elmore Construction Corporation appeal from an order of the Supreme Court, Kings County (Krausman, J.), dated January 21, 1992, which denied the motion by Elmore Construction Corporation to dismiss the complaint insofar as it is asserted against it and granted the plaintiff’s cross motion to restore the case to the trial calendar only as against Elmore Construction Corporation.

Ordered that the appeal by the defendant Liebowitz Kosher Meats and Poultry is dismissed, without costs or disbursements, as it is not aggrieved by the order appealed from (see, CPLR 5511); and it is further,

Ordered that the order is affirmed, without costs or disbursements.

The appellant contends that pursuant to a stipulation of settlement, the plaintiff discontinued the action as to both the appellant and Liebowitz Kosher Meats and Poultry, and that, accordingly, the court should have granted its motion to dismiss the complaint as asserted against both Liebowitz Kosher Meats and Poultry and the appellant. We disagree. A review of all of the evidence in the record, including the general release, reveals that the plaintiff’s clear intent was to release Liebowitz Kosher Meats and Poultry, and not the appellant. Sullivan, J. P., Pizzuto, Joy and Goldstein, JJ., concur.