Opinion
02-15-2017
Sukhvinder S. SODHI, appellant, v. 112 PARK ENTERPRISES, LLC, et al., respondents.
Subin Associates, LLP, New York, NY (Robert J. Eisen, Gregory T. Cerchione, and Brian Isaac of counsel), for appellant. Havkins Rosenfeld Ritzert & Varriale, LLP, New York, NY (Carla Varriale and Justin A. Domenech of counsel), for respondents.
Subin Associates, LLP, New York, NY (Robert J. Eisen, Gregory T. Cerchione, and Brian Isaac of counsel), for appellant.
Havkins Rosenfeld Ritzert & Varriale, LLP, New York, NY (Carla Varriale and Justin A. Domenech of counsel), for respondents.
JOHN M. LEVENTHAL, J.P., L. PRISCILLA HALL, SANDRA L. SGROI, and COLLEEN D. DUFFY, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (D. Hart, J.), entered April 10, 2015, as denied his motion for summary judgment on the issue of liability without prejudice to renew upon the completion of discovery and, upon denying the defendants' cross motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, did so without prejudice to renew.
ORDERED that the appeal from so much of the order as, upon denying the defendants' cross motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, did so without prejudice to renew, is dismissed, as the plaintiff is not aggrieved by that portion of the order; and it is further,
ORDERED that the order is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the defendants. The plaintiff is not aggrieved by the portion of the order which, upon denying the defendants' cross motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, did so without prejudice to renew, as the plaintiff was the successful opponent of the cross motion (see Matter of Curtis & Assoc., P.C. v. Callaghan, 119 A.D.3d 782, 783, 991 N.Y.S.2d 55 ; Pepin v. Jani, 101 A.D.3d 694, 694, 955 N.Y.S.2d 371 ; Matter of Carvel, 303 A.D.2d 405, 755 N.Y.S.2d 851 ; Drepaul v. Allstate Ins. Co., 299 A.D.2d 391, 392, 749 N.Y.S.2d 439 ). Thus, the appeal by the plaintiff from that portion of the order must be dismissed (see Matter of Curtis & Assoc., P.C. v. Callaghan, 119 A.D.3d at 783, 991 N.Y.S.2d 55 ; Pepin v. Jani, 101 A.D.3d at 694, 955 N.Y.S.2d 371 ; Matter of Carvel, 303 A.D.2d 405, 755 N.Y.S.2d 851 ; Drepaul v. Allstate Ins. Co., 299 A.D.2d at 392, 749 N.Y.S.2d 439 ).
Contrary to the plaintiff's contention, the Supreme Court properly denied his motion for summary judgment on the issue of liability without prejudice to renew upon the completion of discovery, given that little discovery had taken place and the depositions of the parties had not yet occurred (see CPLR 3212 [f]; Herrera v. Gargiso, 140 A.D.3d 1122, 1123, 34 N.Y.S.3d 498 ; Takhalov v. Rottenberg, 128 A.D.3d 678, 678, 6 N.Y.S.3d 499 ; Sepulveda v. Cammeby's Mgt. Co., LLC, 119 A.D.3d 927, 989 N.Y.S.2d 885 ; Gardner v. Cason, Inc., 82 A.D.3d 930, 931–932, 918 N.Y.S.2d 769 ).