Hanakis v. DeCarlo

• Decision Date: 26 September 2012
• Parties: Maria HANAKIS, et al., plaintiffs-respondents, v. Elaine A. DeCARLO, et al., appellants, Kaleekal J. Baby, et al., defendants-respondents (and another title).
• Court: New York Supreme Court — Appellate Division

98 A.D.3d 1082

951 N.Y.S.2d 206

2012 N.Y. Slip Op. 06281

Maria HANAKIS, et al., plaintiffs-respondents,

v. Elaine A. DeCARLO, et al., appellants,Kaleekal J. Baby, et al., defendants-respondents(and another title).

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

Sept. 26, 2012.

John C. Buratti, Hicksville, N.Y. (Scott R. Dinstell of counsel), for appellants.

Sacco & Fillas, LLP, Whitestone, N.Y. (Luigi Brandimarte of counsel), for plaintiffs-respondents.

Richard T. Lau, Jericho, N.Y. (Keith E. Ford of counsel), for defendants-respondents Kaleekal J. Baby and Philip Sony Mammen.

RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, and JEFFREY A. COHEN, JJ.

In an action, inter alia, to recover damages for personal injuries, etc., the defendants Elaine A. DeCarlo and Andrew DeCarlo appeal from (1) an order of the Supreme Court, Queens County (McDonald, J.), entered July 25, 2011, which granted the motion of the defendant Jian Chen for summary judgment dismissing the complaint and all cross claims insofar as asserted against him, granted the cross motion of the defendants Kaleekal J. Baby and Philip Sony Mammen for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, and granted the plaintiffs' cross motion for summary judgment on the issue of the liability of the defendants Elaine A. DeCarlo and Andrew DeCarlo, and (2) a judgment of the same court entered October 20, 2011, which, upon the order, dismissed the complaint insofar as asserted against the defendants Jian Chen, Kaleekal J. Baby, and Philip Sony Mammen and, in effect, dismissed all of the cross claims asserted by the defendants Elaine A. DeCarlo and Andrew DeCarlo against those defendants.

ORDERED that the appeal from so much of the order as granted those branches of the motion of the defendant Jian Chen and the cross motion of the defendants Kaleekal J. Baby and Philip Sony Mammen which were for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them is dismissed; and it is further,

ORDERED that the appeal from so much of the judgment as dismissed the complaint insofar as asserted against the defendants Jian Chen, Kaleekal J. Baby, and Philip Sony Mammen is dismissed; and it is further,

ORDERED that the order is affirmed insofar as reviewed; and it is further,

ORDERED that the judgment is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs-respondents and the defendants-respondents Kaleekal J. Baby and Philip Sony Mammen, appearing separately and filing separate briefs.

The appeal from so much of the intermediate order as granted those branches of the motion of the defendant Jian Chen and the cross motion of the defendants Kaleekal J. Baby and Philip Sony Mammen which were for summary judgment dismissing the complaint insofar as asserted against each of them, as well as the appeal from so much of the judgment as dismissed the complaint insofar as asserted against those three defendants, must be dismissed on the ground that the appellants are not aggrieved by those portions of the order and the judgment ( seeCPLR 5511; Mixon v. TBV, Inc., 76 A.D.3d 144, 156, 904 N.Y.S.2d 132). The appeal from so much of the intermediate order as granted those branches of the motion of the defendant Jian Chen and the cross motion of the defendants Kaleekal J. Baby and Philip Sony Mammen which were for summary judgment dismissing all cross claims insofar as asserted as against them must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647), and the issues raised on the appeal from those portions of the order are brought up for review and have been considered on the appeal from the judgment ( seeCPLR 5501[a][1] ).

This case stems from an accident involving four vehicles. According to the deposition testimony of the defendant Elaine A. DeCarlo (hereinafter DeCarlo), she was operating her vehicle, owned by the defendant Andrew DeCarlo (hereinafter together the appellants) in stop-and-go traffic when she took her eyes off the road to address her children, who were in the back seats. About 10 seconds later, she turned around to face the road again, and she saw the plaintiffs' vehicle in the stopped position,about three car lengths in front of her. About 5 seconds later, her vehicle struck the...