| Garcia v Eurobungy USA |
| 2014 NY Slip Op 05838 [120 AD3d 623] |
| August 20, 2014 |
| Appellate Division, Second Department |
[*1]
| Angela Garcia, Individually and as Administratrix of theEstate of Daniel Garcia, Deceased, Respondent, v Eurobungy USA, Appellant.(And a Third-Party Action.) |
Braff, Harris & Sukoneck, New York, N.Y. (Curtis B. Gilfillan of counsel), forappellant.
Ginarte O'Dwyer Gonzalez Gallardo & Winograd, LLP, New York, N.Y.(Lewis Rosenberg of counsel), for respondent.
In an action to recover damages for wrongful death, etc., the defendant appeals, aslimited by its brief, from so much of an order of the Supreme Court, Kings County(Bunyan, J.), dated June 6, 2012, as, sua sponte, directed the dismissal of the complaintfor lack of capacity to sue and denied, as academic, the defendant's cross motion pursuantto CPLR 3211 (a) to dismiss any claims regarding pecuniary damages and damages forloss of parental guidance and services purportedly made on behalf of the decedent'schildren.
Ordered that the appeal from so much of the order as, sua sponte, directed thedismissal of the complaint for lack of capacity to sue is dismissed; and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The defendant argues that the Supreme Court erred in, sua sponte, directing thedismissal of the complaint for lack of capacity to sue. Although the plaintiff lacked thecapacity to sue when the action was commenced, the defendant asserts that the defectwas cured when letters of administration were issued to the plaintiff while the action waspending. The defendant, however, is not aggrieved by the direction that the complaint bedismissed (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144[2010]). Moreover, no appeal lies as of right from that part of an order which does notdecide a motion made on notice (see CPLR 5701 [a] [2]), and leave to appeal hasnot been granted from that portion of the order that directed the dismissal of thecomplaint (see CPLR 5701 [c]). Accordingly, the defendant's appeal from thatportion of the order must be dismissed.
The defendant further contends that the Supreme Court improperly granted leave tothe plaintiff to "replead" or commence a new action with additional allegations regardingthe pecuniary interests of the decedent's children which were not alleged in the originalcomplaint in this action. Contrary to the defendant's contention, however, the orderappealed from does not contain this directive. The court simply directed the dismissal ofthe complaint for lack of capacity to sue, which the defendant is foreclosed fromchallenging on appeal due to lack of aggrievement.
[*2] In light of the Supreme Court directing dismissal ofthe complaint for lack of capacity to sue, the Supreme Court denied, as academic, theplaintiff's motion to amend the complaint to assert additional allegations regarding thepecuniary interests of the decedent's children and denied, as academic, the defendant'scross motion pursuant to CPLR 3211 (a) to dismiss any claims regarding pecuniarydamages and damages for loss of parental guidance and services purportedly made onbehalf of the decedent's children in this action. The Supreme Court did not make anydetermination regarding the propriety of the plaintiff interposing additional claims onbehalf of the pecuniary interests of the decedent's children, and thus, the defendant'scontentions on this issue are not properly before this Court (see Katz v Katz, 68AD2d 536 [1979]).
To the extent that the defendant is challenging the Supreme Court's denial of its crossmotion as academic, the contention is without merit. In light of the direction to dismissthe complaint for lack of capacity to sue, which is not subject to review on thedefendant's appeal, it was not improper for the Supreme Court to deny, as academic, thedefendant's cross motion to dismiss any claims regarding pecuniary damages anddamages for loss of parental guidance and services purportedly made on behalf of thedecedent's children in the instant action. Chambers, J.P., Austin, Hinds-Radix and Duffy,JJ., concur.