Menardy v. Gladstone Props., Inc.

• Decision Date: 21 November 2012
• Citation: 955 N.Y.S.2d 114,100 A.D.3d 840,2012 N.Y. Slip Op. 07966
• Parties: Raymonde MENARDY, appellant, v. GLADSTONE PROPERTIES, INC., et al., defendants, Richard Tannenbaum, respondent.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 840
955 N.Y.S.2d 114
2012 N.Y. Slip Op. 07966

Raymonde MENARDY, appellant,
v.
GLADSTONE PROPERTIES, INC., et al., defendants,
Richard Tannenbaum, respondent.

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

Nov. 21, 2012.

[955 N.Y.S.2d 115]

Amos Weinberg, Great Neck, N.Y., for appellant.

DANIEL D. ANGIOLILLO, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

[100 A.D.3d 841]In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Spodek, J.), dated August 24, 2011, which denied her motion, in effect, for leave to enter a second default judgment against the defendants pursuant to CPLR 3215 and, sua sponte, amended a prior order of the same court dated November 23, 2009, so as to direct the dismissal of the complaint insofar as asserted against the defendant Richard Tannenbaum.

ORDERED that on the Court's own motion, the notice of appeal from so much of the order dated August 24, 2011, as, sua sponte, amended the order dated November 23, 2009, so as to direct the dismissal of the complaint insofar as asserted against the defendant Richard Tannenbaum is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted ( seeCPLR 5701[c] ); and it is further,

ORDERED that the order dated August 24, 2011, is modified, on the law, (1) by deleting the provision thereof, sua sponte, amending the order dated November 23, 2009, so as to direct the dismissal of the complaint insofar as asserted against the defendant Richard Tannebaum and (2), by deleting the provision thereof denying those branches of the motion which were, in effect, for leave to enter a second default judgment pursuant to CPLR 3215 against the defendants Gladstone Properties, Inc., and Columbia Realty Co. and substituting therefor provisions granting those branches of the motion; as so modified, the order dated August 24, 2011, is affirmed, without costs or disbursements.

The plaintiff was injured in 1995 when a kitchen ceiling collapsed onto her. In 1998, the plaintiff commenced an action against the defendants, and in 2007 a default judgment was entered in her favor against all of the defendants. In an order dated November 23, 2009, the Supreme Court granted the defendants' motion to vacate the default judgment, and scheduled the matter for a preliminary conference. Subsequently, the plaintiff's counsel and the defendant Richard...