Jacobs v. Guardian Life Insurance of America

110 A.D.2d 823, 488 N.Y.S.2d 76, 1985 N.Y. App. Div. LEXIS 48724

Opinion

By order of Justice Beatrice Burstein, dated May 2, 1983, plaintiff was directed to replead his fifth cause of action, and, inter alia, his sixth cause of action was dismissed outright. Pursuant to that order, plaintiff served an amended verified complaint in November 1983. That complaint was rejected by defendant who thereafter moved to dismiss the action upon the ground that pursuant to CPLR 3024 (c), it was untimely served. Justice McCaffrey denied the motion and this appeal is from that order. However, subsequent to the filing of this appeal, on February 1, 1984, Justice Alfred Robbins granted a motion by defendant and dismissed plaintiff’s second, fourth and fifth causes of action. Since plaintiff has concededly not challenged Justice Robbins’ order, this appeal has been rendered academic insofar as it relates to those causes of action, and should be dismissed insofar as it relates to those causes of action.

Plaintiff acknowledged that the sixth cause of action, which was dismissed outright by Justice Burstein, should not have been included in the amended complaint. Thus, the order appealed from is modified by striking that cause of action.

Since plaintiff was not directed to replead the first and third causes of action and defendant had notice of those causes of action from the original complaint, those branches of defendant’s motion which sought dismissal of those causes of action were properly denied. Mangano, J. P., Gibbons, Bracken and Niehoff, JJ., concur.