Manganero v. Grega

108 A.D.2d 842, 485 N.Y.S.2d 972, 1985 N.Y. App. Div. LEXIS 43167

Opinion

In an action to recover damages for personal injuries predicated upon causes of action asserting negligence, strict products liability, and breach of warranty, in which defendant Grega cross-claimed against defendant Volkswagen of America, Inc., plaintiff and defendant Grega separately appeal from a judgment of the Supreme Court, Queens County (Hyman, J.), entered November 4,1983, which granted defendant Volkswagen of America, Inc.’s motion for summary judgment pursuant to CPLR 3212 dismissing the complaint and cross claim against it.

Appeal by plaintiff dismissed.

Judgment affirmed as to appellant Grega.

Respondent is awarded one bill of costs payable by appellant Grega.

Plaintiff died prior to the rendering of the decision against him, thereby making the decision void as to him and necessitating the dismissal of his appeal (CPLR 5016 [d]; Byrd v Johnson, 67 AD2d 992).

Special Term properly granted the motion for summary judgment against defendant Grega (see, Paul v Ascher, 106 AD2d 619). There are no factual issues demonstrated in the record indicating that Volkswagen of America, Inc. was liable on the cross claim (see, Robinson v Reed-Prentice Div., 49 NY2d 471). Titone, J. P., Thompson, O’Connor and Eiber, JJ., concur.