O'Ferral v. City of New York

• Decision Date: 14 June 2004
• Docket Number: 2003-09646.,2003-09648.,2003-04145.
• Citation: 779 N.Y.S.2d 90,2004 NY Slip Op 05218,8 A.D.3d 457
• Parties: MONICA O'FERRAL et al., Appellants-Respondents, v CITY OF NEW YORK et al., Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

8 A.D.3d 457

779 N.Y.S.2d 90

2004 NY Slip Op 05218

MONICA O'FERRAL et al., Appellants-Respondents, v CITY OF NEW YORK et al., Respondents-Appellants.

2003-04145.

2003-09646.

2003-09648.

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

June 14, 2004.

In an action to recover damages for personal injuries and wrongful death, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Kings County (Jones, J.), dated February 4, 2002, which, sua sponte, vacated the note of issue, (2) so much of an order of the same court (Knipel, J.) dated January 9, 2003, as denied those branches of their motion which were to strike the defendants' answer, to vacate the order dated February 4, 2002, and to restore the action to the trial calendar, and as granted that branch of the cross motion of the defendant City of New York which was, in effect, to dismiss the first cause of action asserted in the original complaint, and (3) so much of an order of

the same court (Knipel, J.) dated March 27, 2003, as denied those branches of their motion which were denominated as ones which were for leave to resettle, renew, or reargue, but which were, in effect, for leave to reargue that branch of the prior motion which was to vacate the order dated February 4, 2002, and for leave to reargue that branch of the prior cross motion which was to dismiss the first cause of action asserted in the original complaint, and the defendants cross-appeal, as limited by their brief, from so much of the order dated January 9, 2003, as purportedly granted the plaintiffs leave to amend the complaint to name James Coan as a defendant in lieu of "Police Officer `John Doe,' a fictitious name intended to designate an employee of the New York City Police Department."

Ordered that the appeal from the order dated February 4, 2002, is dismissed, without costs or disbursements, as no appeal lies as of right from an order which does not decide a motion made on notice, and leave to appeal has not been granted (see CPLR 5701 [a] [2]); and it is further,

Ordered that the appeal from so much of the order dated March 27, 2003, as denied those branches of the motion which were, in effect, for leave to reargue stated portions of the prior motion and cross motion is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument; and it is further,

Ordered that the cross appeal from so much of the order dated January 9, 2003, as purportedly granted the plaintiffs leave to amend the complaint to name James Coan as a defendant in lieu of "Police Officer `John Doe', a fictitious name intended to designate an employee of the New York City Police Department," is dismissed, without costs or disbursements, as the order grants no such relief; and it is further,

Ordered that the appeal from so much of the order dated January 9,...