Vertucci v. Diaz

192 A.D.2d 703, 598 N.Y.S.2d 733, 1993 N.Y. App. Div. LEXIS 4328

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 26, 1993
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Durante, J.), dated September 12, 1990, which granted the defendant’s motion for summary judgment dismissing the complaint, and (2) so much of an order of the same court, dated April 29, 1991, as upon granting his motion to renew, adhered to the original determination.

Ordered that the appeal from the order dated September 12, 1990 is dismissed, without costs or disbursements, as that order was superseded by the order dated April 29, 1991, made upon renewal, and it is further,

Ordered that the order dated April 29, 1991, is reversed insofar as appealed from, on the law, without costs or disbursements, the order dated September 12, 1990, is vacated, the defendant’s motion for summary judgment is denied, and that branch of the plaintiff’s motion which was for leave to serve an amended complaint to assert a cause of action pursuant to General Municipal Law § 205-e is granted; as so modified, the order is affirmed, without costs or disbursements, and the plaintiff’s time to serve an amended complaint is extended until 30 days after service upon him of a copy of this decision and order, with notice of entry.

In view of the recent amendments to General Municipal Law § 205-e (L 1992, ch 474), the defendant’s motion for summary judgment is denied, and the plaintiff is granted leave to serve an amended complaint to assert a cause of action pursuant to this statute (see, Ruotolo v State of New York, 187 AD2d 160; Costantini v Benedetto, 190 AD2d 888). Thompson, J. P., Lawrence, Eiber and O’Brien, JJ., concur.