Grochowski v. Ben Rubins, LLC

• Decision Date: 01 February 2011
• Citation: Grochowski v. Ben Rubins, LLC, 916 N.Y.S.2d 171, 81 A.D.3d 589 (N.Y. App. Div. 2011)
• Parties: Tomasz GROCHOWSKI, et al., plaintiffs-respondents, v. BEN RUBINS, LLC, et al., defendants-respondents, et al., defendant, A to Z Steel, LLC, appellant.
• Court: New York Supreme Court — Appellate Division

916 N.Y.S.2d 171

81 A.D.3d 589

Tomasz GROCHOWSKI, et al., plaintiffs-respondents,

v. BEN RUBINS, LLC, et al., defendants-respondents, et al., defendant,A to Z Steel, LLC, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 1, 2011.

Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), for appellant.

Samuel J. Lurie, New York, N.Y. (Dennis A. Breen of counsel), for plaintiffs-respondents.

Kalb & Rosenfeld, P.C., Commack, N.Y. (John A. Meringolo of counsel), for defendants-respondents Ben Rubins, LLC, and Emanuel Mizrahi, D.D.S., P.C.

Andrea G. Sawyers, Melville, N.Y. (Dominic P. Zafonte of counsel), for defendant-respondent Emanuel Mizrahi.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.

In an action to recover damages for personal injuries, etc., the defendant A to Z Steel, LLC, appeals (1), as limited by its brief, from so much of an order of the Supreme Court, Queens County (Kitzes, J.), dated September 21, 2009, as granted the motion of the defendants Ben Rubins, LLC, and Emanuel Mizrahi, DDS, P.C., for summary judgment dismissing the complaint insofar as asserted against them and granted that branch of the cross motion of those defendants which was to dismiss the cross claim ofthe defendant A to Z Steel, LLC, insofar as asserted against them, (2), as limited by its brief, from so much of an order of the same court dated December 3, 2009, as denied its motion for leave to file a late motion for summary judgment, and, upon such leave, for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and, as, upon reargument of those branches of the motion of the defendant Emanuel Mizrahi which were for summary judgment dismissing the complaint and the cross claim of the defendant A to Z Steel, LLC, insofar as asserted against him, which had been denied in the order dated September 21, 2009, grantedthose branches of that motion, and (3) from an order of the same court dated February 25, 2010, which denied its motion for leave to renew and reargue.

ORDERED that the appeals from so much of the order dated September 21, 2009, as granted that branch of the motion of the defendants Ben Rubins, LLC, and Emanuel Mizrahi, DDS, P.C., which was for summary judgment dismissing the complaint insofar as asserted against them, and from so much of the order dated December 3, 2009, as granted that branch of the motion of the defendant Emanuel Mizrahi which was for summary judgment dismissing the complaint insofar as asserted against him are dismissed, as the defendant A to Z Steel, LLC, is not aggrieved by those portions of those orders ( see CPLR 5511); and it is further,

ORDERED that the appeal from so much of the order dated February 25, 2010, as denied that branch of the motion of the defendant A to Z Steel, LLC, which was for leave to reargue is dismissed, as no appeal lies from an order denying leave to reargue; and it is further,

ORDERED that the order dated December 3, 2009, is reversed insofar as reviewed, on the law, and the motion of the defendant A to Z Steel, LLC, for leave to file a late summary judgment motion and, upon such leave, for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted; and it is further,

ORDERED that the appeals from so much of the order dated September 21, 2009, as granted that branch of the motion of the defendants Ben Rubins, LLC, and Emanuel Mizrahi, DDS, P.C., which was to dismiss the cross claim of the defendant A to Z Steel, LLC, insofar as asserted against them, from so much of the order dated December 3, 2009, as, upon reargument, granted that branch of the motion of the defendant Emanuel Mizrahi which was for summary judgment dismissing the cross claim of the defendant A to Z Steel, LLC, insofar as asserted againsthim, and from so much of the order dated February 25, 2010, as denied that branch of the motion of the defendant A to Z Steel, LLC, which was for leave to renew are dismissed as academic in light of our determination on the appeal from the order dated December 3, 2009; and it is further,

ORDERED that one bill of costs is awarded to the defendant A to Z Steel, LLC, payable by the respondents appearing separately and filing separate briefs.

The Supreme Court erred in denying that branch of the motion of the defendant A to Z Steel, LLC (hereinafter A to Z Steel), which was for leave to file a late summary judgment motion....