Spadaro v. Parking Sys. Plus, Inc.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: PETER B. SKELOS
• Citation: Spadaro v. Parking Sys. Plus, Inc., 2014 NY Slip Op 494, 113 A.D.3d 833, 979 N.Y.S.2d 627 (N.Y. App. Div. 2014)
• Decision Date: 29 January 2014
• Parties: Louise SPADARO, etc., appellant, v. PARKING SYSTEMS PLUS, INC., et al., respondents, et al., defendants.

113 A.D.3d 833

979 N.Y.S.2d 627

2014 N.Y. Slip Op. 00494

Louise SPADARO, etc., appellant,

v.PARKING SYSTEMS PLUS, INC., et al., respondents, et al., defendants.

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

Jan. 29, 2014.

Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz, New York, N.Y. (Ben B. Rubinowitz and Richard M. Steigman of counsel), for appellant.

Baron Law Firm, PLLC, East Northport, N.Y. (Louis A. Badolato and Jeffrey T. Baron of counsel), for respondents Parking Systems Plus, Inc., and Island Valet Service, Inc.

Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola, N.Y. (Norman H. Dachs of counsel), for respondent S&K Restaurant Corp.

PETER B. SKELOS, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

In an action to recover damages for personal injuries and wrongful death, the plaintiff appeals (1), as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Parga, J.), entered June 3, 2011, as granted those branches of the motion of the defendant S&K Restaurant Corp. and the cross motion of the defendants Parking Systems Plus, Inc., and Island Valet Service, Inc., which were for summary judgment dismissing the complaint insofar as asserted against each of them and denied her cross motion pursuant to CPLR 3126 to strike the answers of those defendants, (2) from a judgment of the same court dated September 19, 2011, which, upon the order, in effect, severed the action against the defendant S&K Restaurant Corp. and is in favor of that defendant and against her, dismissing the complaint insofar as asserted against that defendant, and (3) from a judgment of the same court dated December 6, 2011, which, upon the order, in effect, severed the action against the defendants Parking Systems Plus, Inc., and Island Valet Service, Inc., and is in favor of those defendants and against her, dismissing the complaint insofar as asserted against those defendants. The notice of appeal from the order is deemed also to be a notice of appeal from the judgments ( seeCPLR 5501[c] ).

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgments are reversed, on the law, those branches of the motion of the defendant S&K Restaurant Corp. and the cross motion of the defendants Parking Systems Plus, Inc., and Island Valet Service, Inc., which were for summary judgment dismissing the complaint insofar as asserted against each of them are denied, and the order is modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff, payable by the respondents appearing separately and filing separate briefs.

The appeal from so much of the order entered June 3, 2011, as granted those branches of the motion of the defendant S&K Restaurant Corp. and the cross motion of the defendants Parking Systems Plus, Inc., and Island Valet Service, Inc., which were for summary judgment dismissing the complaint insofar as asserted against each of them and denied the plaintiff's cross motion pursuant to CPLR 3126 to strike the answers of those defendants must be dismissed because the right of direct appeal from those portions of the order terminated with the entry of the judgments dated September 19, 2011, and December 6, 2011 ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review and have been considered on the appeals from the judgments ( seeCPLR 5501[a][1] ).

The plaintiff's decedent was struck and killed by a vehicle driven by the defendant Mayer Sadian. The accident occurred as the decedent crossed Mineola Avenue in Roslyn Heights, several storefronts north of Matteo's Restaurant (hereinafter the restaurant). The plaintiff alleges that, at the time, there were vehicles double-parked outside of the restaurant. The accident occurred when Sadian, driving northbound on Mineola Avenue, allegedly passed the double-parked vehicles, moved from the left lane into the right lane, and then struck the decedent. The plaintiff claims that the double-parked vehicles obstructed Sadian's view of the decedent, and the decedent's view of Sadian's vehicle, and were a proximate cause of the accident. After the plaintiff commenced this action to recover damages for personal injuries and wrongful death, the defendant S&K Restaurant Corp. (hereinafter S&K), which operated the restaurant, moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it. Thereafter, the defendants Parking Systems Plus, Inc., and Island Valet Service, Inc. (hereinafter together the Parking Systems defendants), which were involved in the operation of the valet parking services offered by the restaurant, cross-moved, among other things, for summary judgment...