Ordered that the appeal is dismissed as academic, without costs or disbursements.
Since summary judgment on the merits has been awarded to the defendant in a companion appeal (see, Maschio v. Builders Transp., 201 A.D.2d 627 [decided herewith]), the instant appeal must be dismissed as academic. Mangano, P.J., Balletta, Friedmann and Florio, JJ., concur.