Taylor v. Greenwald

27 A.D.3d 551, 810 N.Y.S.2d 363

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 14, 2006
• Status: Published

Opinion

In an action to recover damages for wrongful death, etc., (1) the defendant Nissan Motor Acceptance Corporation appeals, as limited by its notice of appeal, and the defendant Judith Greenwald also appeals, as limited by the joint brief, from so much of an order of the Supreme Court, Kings County (Ruditzky, J.), dated January 21, 2005, as (a) granted the plaintiffs’ cross motion, in effect, to vacate so much of an order of the same court dated October 19, 2004, as granted those branches of their separate unopposed motions which were to strike the complaint unless the plaintiffs complied with certain court-ordered discovery by a date certain, and (b) denied the motion of the defendant Nissan Motor Acceptance Corporation, joined by the defendant Judith Greenwald, to dismiss the complaint for failure to comply with the order dated October 19, 2004, and (2) the defendant Nissan Motor Acceptance Corporation appeals from so much of an order of the same court dated March 24, 2005, as, in effect, upon renewal and reargument, adhered to the prior determination. The appeal by the defendant Judith Greenwald from the order dated January 21, 2005 also brings up for review so much of the order dated March 24, 2005 as, in effect, upon renewal and reargument, adhered to the prior determination (see CPLR 5517 [b]).

Ordered that the appeal from the order dated January 21, 2005 is dismissed, without costs or disbursements, as that order was superseded by the order dated March 24, 2005 made upon renewal and reargument; and it is further,

Ordered that the order dated March 24, 2005 is affirmed insofar as appealed from, without costs or disbursements.

Under the circumstances of this case, the Supreme Court providently exercised its discretion. Santucci, J.P., Luciano, Fisher and Covello, JJ., concur.