| Gureje v Richardson |
| 2010 NY Slip Op 08700 [78 AD3d 997] |
| November 23, 2010 |
| Appellate Division, Second Department |
| Rowland Gureje, Respondent-Appellant, v JasmineRichardson et al., Appellants-Respondents. |
—[*1] Chidi A. Eze, Brooklyn, N.Y., for respondent-appellant.
In an action to recover damages for personal injures, the defendants appeal (1) from an orderof the Supreme Court, Kings County (F. Rivera, J.), dated June 26, 2009, and (2), as limited bytheir brief, from so much of an amended order of the same court dated July 8, 2009, as grantedthat branch of the plaintiff's motion pursuant to CPLR 5015 (a) which was to vacate a judgmententered April 6, 2009, in favor of them and against the plaintiff dismissing the complaint, and, ineffect, denied that branch of their cross motion which was to direct the Clerk of the SupremeCourt, Kings County, to mark the matter "disposed," and the plaintiff cross-appeals, as limited byhis brief, from so much of the same amended order dated July 8, 2009, as denied that branch ofhis motion which was to impose sanctions upon the defendants.
Ordered that the appeal from the order dated June 26, 2009, is dismissed, as that order wassuperseded by the amended order dated July 8, 2009; and it is further,
Ordered that the amended order dated July 8, 2009, is affirmed insofar as appealed andcross-appealed from, without costs or disbursements.
The Supreme Court properly granted that branch of the plaintiff's motion which was tovacate a judgment dismissing the complaint. That judgment was purportedly entered upon anorder of the Supreme Court dated April 10, 2008, which was affirmed in an order of this Courtdated February 10, 2009 (see Gureje vRichardson, 59 AD3d 494 [2009]). However, the order dated April 10, 2008, merelygranted that branch of the defendants' motion which was to vacate another prior order of thesame court, granting the plaintiff leave to enter a default judgment against them. Since the orderdated April 10, 2008, did not grant that branch of the defendants' motion which was to dismissthe complaint, there was no basis upon which to enter a judgment dismissing the complaint, andthe Supreme Court properly vacated that judgment.
Since the plaintiff did not demonstrate frivolous conduct on the part of the [*2]defendants, the Supreme Court properly denied that branch of theplaintiff's motion which was to impose sanctions upon the defendant (see 22 NYCRR130-1.1).
The defendant's remaining contention has been rendered academic in light of ourdetermination. Skelos, J.P., Santucci, Angiolillo, Hall and Roman, JJ., concur.