Transport Towing, Inc. v. Rad Oil Co.

257 A.D.2d 569, 682 N.Y.S.2d 899, 1999 N.Y. App. Div. LEXIS 135

Opinion

—In an action, inter alia, to recover damages for breach of contract, the defendant appeals from so much of an order of the Supreme Court, Kings County (Belen, J.), dated August 28, 1997, as, in effect, granted the plaintiffs motion for renewal, vacated so much of an order of the same court, dated May 29, 1997, as granted the defendant’s motion for partial summary judgment on its first counterclaim, and denied that motion.

Ordered that the order is affirmed insofar as appealed from, with costs.

Under the circumstances of this case, the court did not err by, in effect, treating the plaintiffs motion as one for renewal (see, CPLR 2221; Friedman v U-Haul Truck Rental, 216 AD2d 266; Turkel v I.M.I. Warp Knits, 50 AD2d 543), and, upon renewal, vacating so much of its earlier order as had granted the defendant’s motion for partial summary judgment and substituting an order denying the motion (see, McMahon v Pfister, 49 AD2d 729, 730; Hastings v Richard, Ellis & Co., 36 AD2d 695).

In light of this determination, we need not reach the parties’ remaining contentions. Bracken, J. P., O’Brien, Joy and Florio, JJ., concur.