| Organek v Harris |
| 2011 NY Slip Op 09393 [90 AD3d 1512] |
| December 23, 2011 |
| Appellate Division, Fourth Department |
| Albert Organek, as Administrator of the Estate of Michael Organek,Deceased, Respondent, v Antonio Harris, Appellant. |
—[*1] Justin S. White, Williamsville, for plaintiff-respondent.
Appeal from an order and judgment (one paper) of the Supreme Court, Erie County (DonnaM. Siwek, J.), entered May 29, 2009. The order and judgment, insofar as appealed from, grantedthat part of plaintiff's amended motion seeking partial summary judgment on liability andawarded plaintiff $748,000 in damages following an inquest.
It is hereby ordered that the order and judgment insofar as appealed from is unanimouslyreversed on the law without costs, that part of plaintiff's amended motion seeking partialsummary judgment on liability is denied, the award of damages is vacated and defendant isgranted 20 days after service of the order of this Court with notice of entry to serve and file ananswer.
Memorandum: Plaintiff, as administrator of the estate of his son (decedent), commenced thisaction seeking damages for decedent's wrongful death and conscious pain and suffering.Defendant was convicted of two counts of murder in the second degree (Penal Law §125.25 [3] [felony murder]) in connection with decedent's death. Plaintiff moved for partialsummary judgment on liability, and defendant cross-moved for summary judgment dismissingthe complaint. Before Supreme Court ruled on the motion or the cross motion, plaintiff sought toserve an amended complaint, which defendant rejected on the ground that the time period foramending the complaint without leave of court had expired. Plaintiff thereafter movedsimultaneously for leave to amend the complaint and for partial summary judgment on liability.The court granted the amended motion and denied the cross motion and, following an inquest ondamages, awarded plaintiff $748,000.
Contrary to plaintiff's contention, the order granting plaintiff's amended motion for leave toamend the complaint and partial summary judgment on liability is brought up for review ondefendant's appeal from the order and judgment awarding damages (see CPLR 5501 [a][1]; Stride Contr. Corp. v Board of Contract & Supply of City of Yonkers, 181 AD2d876, 877 [1992]). Defendant does not contend on appeal that the court erred in granting that partof plaintiff's amended motion seeking leave to amend the complaint, and thus he is deemed tohave abandoned any such contention (see Ciesinski v Town of Aurora, 202 AD2d 984[1994]). We agree with [*2]defendant, however, that the courterred in granting that part of the amended motion seeking partial summary judgment on liability."It was premature . . . to grant plaintiff summary judgment at the same time that hewas allowed to amend his complaint [inasmuch as] defendant had not yet had an opportunity toserve an answer to the amended complaint and, thus, issue had not been joined" (Greene v Hayes, 30 AD3d 808,810 [2006]; see Gold Medal Packing vRubin, 6 AD3d 1084 [2004]). We therefore reverse the order and judgment insofar asappealed from, deny that part of plaintiff's amended motion for partial summary judgment onliability and vacate the award of damages, and we grant defendant 20 days from service of theorder of this Court to serve and file an answer. Present—Scudder, P.J., Smith, Green,Gorski and Martoche, JJ.