Knox v. New York City Bureau of Franchises

277 A.D.2d 204, 716 N.Y.S.2d 874, 2000 N.Y. App. Div. LEXIS 11277

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 6, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, (1) the defendants, Gannett Transit, Inc., and Outdoor Systems, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Hutcherson, J.), dated August 5, 1999, as denied their motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against them and to impose a sanction against the plaintiff, the defendant Universal Unlimited, Inc., separately appeals, as limited by its brief, from so much of the same order as denied its separate motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against it, and the defendant Shelter Express, Inc., separately appeals, as limited by its brief, from so much of the same order as denied, without prejudice, its separate motion for summary judgment dismissing the complaint insofar as asserted against it, and (2) the defendants Gannett Transit, Inc., and Outdoor Systems, Inc., appeal, and the defendants Universal Unlimited, Inc., and Shelter Express, Inc., separately appeal, as limited by their respective briefs, from so much of a sua sponte amended order of the same court, dated September 27, 1999, as, upon correcting a typographical error in the order dated August 5, 1999, denied their respective motions.

Ordered that on the Court’s own motion, the notices of appeal from the order dated September 27, 1999, are deemed applications for leave to appeal from the amended order and leave to appeal is granted (see, CPLR 5701 [c]); and it is further,

Ordered that the appeals from the order dated August 5, 1999, are dismissed, as that order was superseded by the amended order; and it is further,

Ordered that the amended order is modified, the branch of the motion of the defendants Gannett Transit, Inc., and Outdoor Systems, Inc., and the motions of the defendants Universal Unlimited, Inc., and Shelter Express, Inc., which were to dismiss the complaint insofar as asserted against them are granted, the complaint is dismissed insofar as asserted against the appellants, and the action against the remaining defendants is severed; as so modified, the order is affirmed insofar as appealed from; and it is further,

Ordered that the appellants are awarded one bill of costs.

The plaintiffs pleadings failed to identify any specific actionable conduct on the part of the appellants. Accordingly, their respective motions should have been granted. The imposition of a sanction, however, is unwarranted. Sullivan, J. P., S. Miller, H. Miller and Smith, JJ., concur.