Popovetsky v. AAMCO Transmissions, Inc.

292 A.D.2d 435, 738 N.Y.S.2d 872, 2002 N.Y. App. Div. LEXIS 2479

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 11, 2002
• Status: Published

Opinion

In an action to recover damages, inter alia, for fraud, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (McCaffrey, J.), entered May 15,2001, which, among other things, granted the defendants’ motions for summary judgment dismissing the complaint, (2) stated portions of an order of the same court, dated September 1, 1999, which, inter alia, denied his motion to compel certain disclosure, and (3) so much of an order of the same court, dated November 20, 1998, as denied that branch of his motion which was to appoint a referee to supervise discovery and granted the defendants’ cross motion to quash a nonjudicial subpoena duces tecum.

The plaintiff’s notice of appeal from a decision of the same court, dated December 15, 2000, is deemed to be a premature notice of appeal from the order entered May 15, 2001 (see, CPLR 5520 [c]).

Ordered that the order entered May 15, 2001, is affirmed; and it is further,

Ordered that the orders dated September 1, 1999, and November 20, 1998, are affirmed insofar as appealed from; and it is further,

Ordered that the respondents are awarded one bill of costs.

Contrary to the plaintiff’s contention, the Supreme Court providently exercised its discretion in entertaining the defendants’ belated motion for summary judgment (see, CPLR 3212; Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124; Williams v Nicolaou, 284 AD2d 451). Further, the award of summary judgment to the defendants was proper for the reasons stated by Justice McCaffrey at the Supreme Court in his decision dated December 15, 2000.

The plaintiff’s remaining contentions are without merit. Ritter, J.P., Smith, Friedmann and Cozier, JJ., concur.