Kyong Hi Wohn v. County of Suffolk

211 A.D.2d 761, 621 N.Y.S.2d 392, 1995 N.Y. App. Div. LEXIS 686

Opinion

In an action to recover damages for personal injuries, etc., the defendants appeal from a purported order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated October 26, 1992, which (1) granted the plaintiffs’ application for a mistrial, (2) granted the plaintiffs’ application for leave to serve an amended complaint, and (3) denied the defendants’ motion, denominated as one to dismiss the action to the extent it was based on economic loss.

Ordered that the appeal is dismissed, without costs or disbursements.

At the conclusion of the plaintiffs’ attorney’s opening statement, the defendants’ attorney made an application to "dismiss all claims regarding economic loss as they have not been [pleaded] in the complaint”. In an oral decision from the Bench, the Justice presiding in the Supreme Court denied this application, and granted the application by the plaintiffs’ attorney for a mistrial and for leave to serve an amended complaint. These dispositions were reduced to a writing dated October 26, 1992, signed by the Justice in the Supreme Court. It is from this paper that the defendants now appeal.

The appeal should be dismissed. The paper appealed from in this case constituted a ruling, or more accurately a series of related rulings, made during the course of a trial. No appeal lies from such rulings (see, CPLR 5701; see also, Radford v Sheridan Prods., 181 AD2d 667; Savarese v City of New York Hous. Auth., 172 AD2d 506; Brown v Micheletti, 97 AD2d 529; Kopstein v City of New York, 87 AD2d 547; 7 Weinstein-Korn-Miller, NY Civ Prac fl 5701.16a). Bracken, J. P., Miller, Copertino, Santucci and Altman, JJ., concur.