BROOKS v. MAINTENANCE SERV

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Docket Number

No. 2006-02155.

Attorney(S)

Rayo and Fontanelli, P.C., Brooklyn, N.Y. (Mark J. Rayo, Louis A. Badolato, and Brian Isaac of counsel), for appellant-respondent. Charles J. Siegel, New York, N.Y. (Peter E. Vairo of counsel), for defendant third-party plaintiff-respondent-appellant. Leahey Johnson, P.C., New York, N.Y. (Peter James Johnson, Peter James Johnson, Jr., James P. Tenney, and Joanne Filiberti of counsel), for third-party defendant-respondent-appellant.

Judges

Fisher, J. (dissenting and voting to affirm the order insofar as appealed and cross-appealed from, with the following memorandum):

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KISNET BROOKS, Appellant-Respondent, v. MAINTENANCE SERVICE RESOURCES, INC., Defendant and Third-Party Plaintiff-Respondent-Appellant. ALLIED EXTERMINATING, Third-Party Defendant-Respondent-Appellant.

Ordered that the appeal and cross-appeals are dismissed as academic, without costs or disbursements, in light of our determination of an appeal and cross appeal from an interlocutory judgment of the Supreme Court, Kings County, dated June 28, 2005 ( see Brooks v Maintenance Serv. Resources, Inc., 44 AD3d 887 [decided herewith]).

Fisher, J. (dissenting and voting to affirm the order insofar as appealed and cross-appealed from, with the following memorandum):

In light of my dissent from this Court's determination of an appeal and cross appeal from an interlocutory judgment of the Supreme Court, Kings County, dated June 28, 2005 ( see Brooks v Maintenance Serv. Resources, Inc., 44 AD3d 887 [decided herewith]), I would not dismiss the appeal and cross appeals as academic. Rather, I would hold that the Supreme Court providently exercised its discretion in granting the defendant third-party plaintiff and the third-party defendant leave to renew their respective motions pursuant to CPLR 4404 (a) ( see CPLR 2221 [e] [3]) and, upon renewal, providently granted, in the interests of justice, those branches of the motions which were to set aside the jury verdict awarding damages and for a new trial on the issue of damages ( see Matter of De Lano, 34 AD2d 1031, 1032, affd 28 NY2d 587; McCarthy v Port of N.Y. Auth., 21 AD2d 125). Moreover, contrary to the contentions of the defendant third-party plaintiff and the third-party defendant, the Supreme Court providently exercised its discretion in declining to dismiss the complaint as a sanction ( cf. CPLR 3216; Sisca v City of Yonkers, N.Y., 24 AD3d 531, 532). [See 11 Misc 3d 1067(A), 2006 NY Slip Op 50420(U) (2006).]

KISNET BROOKS, Appellant-Respondent, v. MAINTENANCE SERVICE RESOURCES, INC., Defendant and Third-Party Plaintiff-Respondent-Appellant. ALLIED EXTERMINATING, Third-Party Defendant-Respondent-Appellant.

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