HERBERT v. MORGAN DRIVE-A-WAY, INC

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), appeal by the Herberts dismissed, without costs, upon the ground that the Appellate Division order does not finally determine action No. 1 within the meaning of the Constitution. The order appealed from in action No. 1 does not resolve plaintiffs' claim against Dorothy Mollicone, and her cross claim against defendants Morgan Drive-A-Way, Inc. and Errol K. Miller has never been dismissed. Accordingly, claims remain pending with respect to all parties in action No. 1. On appeal by plaintiff Dorothy Mollicone in action No. 2, order, insofar as appealed from, reversed, with costs, and defendants' motion for summary judgment in action No. 2 denied, for the reasons stated in the dissenting memorandum of Justice Paul J. Yesawich, Jr., at the Appellate Division ( 202 A.D.2d 886, 888).

Concur: Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK.