Voss v. Neth. Ins. Co.

• Decision Date: 05 February 2016
• Citation: 136 A.D.3d 1288,24 N.Y.S.3d 809
• Parties: Deborah S. VOSS, Prop–Co, LLC, Classi People, Inc., Doing Business as Sertino's Café, and Dream People, Inc., Doing Business as Shiver Model, Plaintiffs–Respondents, v. The NETHERLANDS INSURANCE COMPANY, et al., Defendants, and CH Insurance Brokerage Services, Co., Inc., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 1288

24 N.Y.S.3d 809

Deborah S. VOSS, Prop–Co, LLC, Classi People, Inc., Doing Business as Sertino's Café, and Dream People, Inc., Doing Business as Shiver Model, Plaintiffs–Respondents,

v. The NETHERLANDS INSURANCE COMPANY, et al., Defendants,andCH Insurance Brokerage Services, Co., Inc., Defendant–Appellant.

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

Feb. 5, 2016.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Albany (Thomas M. Witz of Counsel), for Defendant–Appellant.

Dirk J. Oudemool, Syracuse, for Plaintiffs–Respondents.

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DeJOSEPH, and SCUDDER, JJ.

MEMORANDUM:

Defendant-appellant (defendant) appeals from an order denying its motion seeking, inter alia, a determination that plaintiffs are precluded from seeking and presenting evidence at trial of consequential damages on the ground that Supreme Court had previously dismissed that claim with respect to the other defendants and that order was affirmed by this Court (Voss v. Netherlands Ins. Co. [Appeal No. 1], 104 A.D.3d 1228, 960 N.Y.S.2d 677, 678 ). The court dismissed the claim for consequential damages with respect to the other defendants after the amended complaint had been dismissed against defendant in its entirety, and before it was reinstated by the Court of Appeals (Voss v. Netherlands Ins. Co., 96 A.D.3d 1543, 947 N.Y.S.2d 253, revd. 22 N.Y.3d 728, 985 N.Y.S.2d 448, 8 N.E.3d 823 ). In denying the instant motion, the court determined that defendant was required to seek such relief by way of a motion for summary judgment rather than a motion in limine, and thus the court did not address the merits of the motion.

We note at the outset that the court erred in requiring defendant to seek the same relief by way of a motion for summary judgment, and instead should have decided the merits of the motion before it. Although defendant titled that part of the motion as a motion in limine, it is the functional equivalent of a summary judgment motion (see generally Scalp & Blade v. Advest, Inc., 309 A.D.2d 219, 224, 765 N.Y.S.2d 92 ), and an order deciding the merits of such a motion is appealable because it "limits the scope of the issues at trial" (Dischiavi v. Calli, 125 A.D.3d 1435, 1436, 3 N.Y.S.3d 491 ). Contrary to plaintiffs' contention, we conclude that defendant may appeal from the order because the court should have decided the merits of that part of the motion, which in turn "involves some part of the merits" of the...