Joseph Weiss & Sons, Inc. v. P. J. Carlin Construction Co.

92 A.D.2d 585, 459 N.Y.S.2d 729, 1983 N.Y. App. Div. LEXIS 16835

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 22, 1983
• Status: Published

Opinion

— In an action, inter alla, to recover damages for breach of contract, plaintiff appeals from (1) an order of the Supreme Court, Kings County (Rader, J.), dated November 12, 1981, which, inter alla, granted a motion of defendants P. J. Carlin Construction Company, Atlas Tile & Marble Works, Inc., and Samuel Menlowe for summary judgment pursuant to CPLR 3212 and dismissed the complaint as against them; (2) so much of a further order of the same court, dated January 12,1982, as, after granting plaintiff’s motion for leave to serve a supplemental summons and an amended complaint, dismissed the amended complaint as against the said three defendants, and (3) an order of the same court, dated March 1, 1982, which denied plaintiff’s motion for renewal with respect to the order dated January 12, 1982. Order dated November 12, 1981 reversed and order dated January 12, 1982 reversed, insofar as appealed from, respondents’ motion for summary judgment denied and plaintiff’s motion for leave to serve a supplemental summons and an amended complaint granted as to all defendants. Appeal from order dated March 1,1982 dismissed as academic in light of the determinations on the appeals from the orders dated November 12, 1981 and January 12, 1982. Plaintiff is awarded one bill of $50 costs and disbursements. The papers submitted on the motions, including the verified amended complaint, and the addition of Nycon Capital Corp. as a party defendant, present triable issues of fact. Titone, J. P., Mangano, Gibbons and Weinstein, JJ., concur.