Chaudhry v. Ziomek

• Decision Date: 12 September 2005
• Docket Number: 2004-03791.,2003-11377.
• Parties: IQBAL CHAUDHRY et al., Respondents-Appellants, v. WLADYSLAW ZIOMEK, Appellant, and CITY OF NEW YORK et al., Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

21 A.D.3d 922

801 N.Y.S.2d 603

2005 NY Slip Op 06645

IQBAL CHAUDHRY et al., Respondents-Appellants, v. WLADYSLAW ZIOMEK, Appellant, and CITY OF NEW YORK et al., Appellants-Respondents.

2003-11377.

2004-03791.

Appellate Division of the Supreme Court of the State of New York, Second Department.

September 12, 2005.

In an action to recover damages for personal injuries, etc., (1) (a) the defendant Wladyslaw Ziomek appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Jacobson, J.), dated December 1, 2003, as denied his cross motion pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against him for failure to prosecute, (b) the defendants City of New York and New York City Health and Hospitals Corporation appeal, as limited by their brief, from so much of the same order as denied that branch of their motion pursuant to CPLR 3216 which was to dismiss the second cause of action, and (c) the plaintiffs cross-appeal, as limited by their notice of appeal and brief, from so much of the same order as granted those branches of the motion of the defendants City of New York and New York City Health and Hospitals Corporation which were to dismiss the third, fourth, and fifth causes of action and (2) (a) the defendants City of New York and New York City Health and Hospitals Corporation appeal, as limited by their brief, from so much of an order of the same court dated March 24, 2004, as, in effect, upon reargument, adhered to so much of the determination in the order dated December 1, 2003, as denied that branch of their motion pursuant to CPLR 3216 which was to dismiss the second cause of action insofar as it

was based on a claim of negligence, and (b) the plaintiffs cross-appeal from so much of the same order as denied their motion for leave to renew and/or reargue those branches of the prior motion of the defendants City of New York and New York City Health and Hospitals Corporation which were to dismiss the third, fourth, and fifth causes of action, granted that branch of the cross motion of the defendants City of New York and New York City Health and Hospitals Corporation which was for leave to reargue that branch of their prior motion which was to dismiss the second cause of action, and, upon reargument, dismissed the second cause of action to the extent that it was based on a claim of defective roadway design.

Ordered that the appeal by the defendants City of New York and New York City Health and Hospitals Corporation from the order dated December 1, 2003, is dismissed, as that order, insofar as appealed from by those defendants, was superseded by the order dated March 24, 2004, made upon reargument; and it is further,

Ordered that the cross appeal by the plaintiffs from so much of the order dated March 24, 2004, as denied that branch of their motion which was for leave to reargue those branches of the prior motion of the defendants City of New York and New York City Health and Hospitals Corporation which were to dismiss the third, fourth, and fifth...