| Oparaji v Scheiner |
| 2008 NY Slip Op 03182 [50 AD3d 753] |
| April 8, 2008 |
| Appellate Division, Second Department |
| Maurice Oparaji, Appellant, v Stephen Scheiner et al.,Respondents. |
—[*1] Mitchell Dranow, Mineola, N.Y., for respondents.
In a consolidated action, inter alia, to recover damages for personal injuries and conversion,the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (Davis, J.), datedNovember 13, 2006, which denied his motion for summary judgment on the issue of liability asuntimely and academic, and (2) a judgment of the same court dated February 1, 2007, which,upon a jury verdict finding that the defendant Stephen Scheiner did not commit a battery uponhim, is in favor of the defendants and against him, dismissing the complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues regarding the denial of the plaintiff's motion for summaryjudgment, raised on the appeal from the order, are brought up for review and have beenconsidered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The Supreme Court properly denied the plaintiff's motion for summary judgment on the issue[*2]of liability as untimely and academic. The motion was mademore than 120 days after a note of issue was filed (see CPLR 3212 [a]; Lofstad v S & R Fisheries, Inc., 45AD3d 739, 743 [2007]; Jones vRicciardelli, 40 AD3d 936 [2007]). Moreover, the plaintiff failed to establish goodcause for the late filing of the motion (see Brill v City of New York, 2 NY3d 648 [2004]). The plaintiff'spro se motion for summary judgment on the issue of liability was made nearly two months after ajury trial in which the jury ultimately found that the defendant Stephen Scheiner did not commit abattery upon the plaintiff.
The plaintiff submitted an order to show cause to the Supreme Court, seeking to bring on amotion for the court to recuse itself from the determination of the summary judgment motion.The Supreme Court declined to sign the order to show cause; thus, the motion never was made ordecided. Accordingly, to the extent the plaintiff raises any argument on appeal regarding themerits of his recusal motion, it is not properly before this Court.
At this time, we decline the defendants' request for an award of an attorney's fee andimposition of a financial sanction upon the plaintiff (see 22 NYCRR 130-1.1).
The parties' remaining contentions are without merit. Prudenti, P.J., Miller, Dillon andMcCarthy, JJ., concur.