| Gluck v Nebgen |
| 2010 NY Slip Op 03408 [72 AD3d 1023] |
| April 27, 2010 |
| Appellate Division, Second Department |
| Markus Gluck et al., Appellants, v James M. Nebgen et al.,Defendants, and NILT, Inc., Respondent. |
—[*1] London Fischer, LLP, New York, N.Y. (Clifford B. Aaron, Matthew K. Finkelstein, andStephanie I. Kudrle of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) anorder of the Supreme Court, Suffolk County (Mayer, J.), entered April 17, 2009, which grantedthat branch of the motion of the defendant NILT, Inc., which was to dismiss the complaintinsofar as asserted against it pursuant to CPLR 3211 (a) (7), and denied their cross motion forsummary judgment dismissing the seventh affirmative defense asserted by that defendantalleging that the action is barred by 49 USC § 30106 (the Graves Amendment), and (2) ajudgment of the same court entered May 5, 2009, which, upon the order, is in favor of thedefendant NILT, Inc., and against them dismissing the complaint insofar as asserted against thatdefendant.
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 defendant NILT, Inc.
The appeal from the order must be dismissed because the right of direct appeal therefromterminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d241, 248 [1976]). The issues raised on the appeal from the order are brought up for review andhave been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The Supreme Court properly granted that branch of the motion of the defendant NILT, Inc.(hereinafter the respondent), which was to dismiss the complaint insofar as asserted against itpursuant to CPLR 3211 (a) (7). The respondent showed that it was an "owner (or an affiliate ofthe owner) . . . engaged in the trade or business of renting or leasing motorvehicles" (49 USC § 30106 [a] [1]). Since there are no allegations of negligence orwrongdoing on its part, the respondent was entitled to dismissal of the complaint insofar asasserted against it for failure to state a cause of action (see 49 USC § 30106; Graham v Dunkley, 50 AD3d 55,58 [2008]). The plaintiffs' cross motion also was [*2]properlydenied.
The plaintiffs' remaining contention is without merit (see Graham v Dunkley, 50AD3d at 58). Rivera, J.P., Dillon, Florio and Balkin, JJ., concur.