| Crane-Hogan Structural Sys., Inc. v ESLS Dev., LLC |
| 2010 NY Slip Op 06848 [77 AD3d 1302] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| Crane-Hogan Structural Systems, Inc., Respondent, v ESLSDevelopment, LLC, Appellant/Third-Party Plaintiff. Pierce Engineering, P.C., Third-PartyDefendant-Respondent. |
—[*1] Gates & Adams, P.C., Rochester (Richard T. Bell, Jr., of counsel), for plaintiff-respondent. Harter Secrest & Emery LLP, Rochester (Jessica M. Patrick of counsel), for third-partydefendant-respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (Brian F. DeJoseph, J.),entered December 29, 2009. The judgment was entered in favor of plaintiff upon its motion forsummary judgment.
It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this breach of contract action seeking, inter alia, payment forwork that it performed on a parking garage owned by defendant/third-party plaintiff (defendant).Supreme Court, inter alia, granted plaintiff's motion for summary judgment on the breach of contractcause of action and denied defendant's cross motion to compel plaintiff to comply with discoverydemands and for summary judgment dismissing the complaint to the extent that it sought payment "inexcess of the contract sum." The court subsequently granted defendant's motion for leave to reargue itsopposition to plaintiff's motion and adhered to its prior determination, but it appears that no order wasever entered on that motion. However, a final monetary judgment was entered thereafter. Althoughdefendant appeals from the court's initial order and judgment, we exercise our discretion to treat thenotice of appeal as valid and [*2]deem the appeal as taken from thefinal judgment (see CPLR 5520 [c]; McLaughlin v Midrox Ins. Co. [appeal No. 2],70 AD3d 1463, 1464-1465 [2010]; TambeElec., Inc. v Home Depot U.S.A., Inc., 49 AD3d 1161 [2008]). We affirm for reasons statedin the decision at Supreme Court underlying the initial order and judgment and for reasons stated in thedecision at Supreme Court granting defendant's motion for leave to reargue.Present—Martoche, J.P., Centra, Carni, Lindley and Green, JJ.