Continental Custom Wood Finishing Corp. v. Chestnut Homes, Inc.

• Decision Date: 16 March 1998
• Parties: 1998 N.Y. Slip Op. 2519 CONTINENTAL CUSTOM WOOD FINISHING CORP., Plaintiff Respondent-Appellant, v. CHESTNUT HOMES, INC., Appellant-Respondent, New York City Department of Housing Preservation and Development, Defendant-Respondent, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 889

669 N.Y.S.2d 889

1998 N.Y. Slip Op. 2519

CONTINENTAL CUSTOM WOOD FINISHING CORP., Plaintiff Respondent-Appellant, v. CHESTNUT HOMES, INC., Appellant-Respondent New York City Department of Housing Preservation and Development, Defendant-Respondent, et al., Defendants.

Supreme Court of New York, Appellate Division Second Department.

March 16, 1998.

John Z. Marangos, Staten Island, for appellant-respondent.

Jeffrey D. Friedlander, Acting Corporation Counsel, New York City (Francis F. Caputo, Joseph I. Lauer, and Dana H. Biberman, of counsel), for defendant-respondent.

In an action, inter alia, to enjoin the defendants from utilizing the plaintiff's cesspool, the defendant Chestnut Homes, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated May 15, 1996, as (1) denied its motion to dismiss the complaint insofar as asserted against it as time-barred, and (2) granted the motion of the defendant New York City Department of Housing Preservation and Development to dismiss the complaint insofar as asserted against it. The plaintiff cross-appeals from the order dated May 15, 1996.

ORDERED that the plaintiff's cross appeal is dismissed for failure to perfect the same in accordance with the rules of this court (see, 22 NYCRR 670.8[c], [e] ); and it is further,

ORDERED that the appeal of Chestnut Homes, Inc., from so much of the order as granted the motion of the defendant New York City Department of Housing Preservation and Development to dismiss the complaint insofar as asserted against it is dismissed as Chestnut Homes, Inc., is not aggrieved by that portion of the order (see, CPLR 5511); and it is further,

ORDERED that the order dated May 15, 1996, is affirmed insofar as reviewed; and it is further,

ORDERED that the defendant-respondent is awarded one bill of costs.

Chestnut Homes, Inc., is not aggrieved by the dismissal of the complaint insofar as asserted against the defendant New York City Department of Housing Preservation and Development (see, CPLR 5511; Andrew Keith Props. v. Hubinette Cowell Assocs., --- A.D.2d ----, 663 N.Y.S.2d 856; Dublin v. Prime, 168 A.D.2d 597, 563 N.Y.S.2d 674).

Chestnut Homes, Inc., has failed to establish on this record that the plaintiff's causes of action insofar as asserted against it are barred by the applicable Statute of Limitations (see, CPLR 214; Jensen v. General Elec. Co., 82 N.Y.2d 77, 603 N.Y.S.2d 420, 623 N.E.2d 547; ...