Jones v. Park Realty

Full title: HARVEY C. JONES, as Parent and Natural Guardian of HARVEY C. JONES, JR.…

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Dec 21, 1990

168 A.D.2d 945 (N.Y. App. Div. 1990)

565 N.Y.S.2d 637

Opinion

December 21, 1990

Appeal from the Supreme Court, Erie County, Joslin, J.

Present — Doerr, J.P., Boomer, Pine, Balio and Lawton, JJ.

Appeal dismissed without costs. Memorandum: Because we have reversed the order denying the motion for summary judgment and have granted summary judgment dismissing the complaint, the appeal from this order is moot (see, Jones v. Park Realty [appeal No. 2], 168 A.D.2d 945 [decided herewith]).

All concur except Balio and Lawton, JJ., who dissent and vote to affirm in the following memorandum.

Balio and Lawton, JJ. (dissenting).

We respectfully dissent. Inasmuch as we concluded in our dissenting memorandum in Jones v. Park Realty ([appeal No. 2] 168 A.D.2d 945, 946 [decided herewith]) that the trial court properly denied summary judgment this appeal is not moot. We concur with Supreme Court's ruling that set aside the jury's verdict in the interest of justice and granted a new trial. Consequently, we would affirm.