CAGUANA v. NY (2023)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Darrell L. Gavrin, J.), entered January 4, 2021.  The order denied the plaintiff's motion for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against the defendant Sunny Builders N.Y. Corp.

ORDERED that the appeal is dismissed as academic, with costs.

In a prior order entered December 3, 2018, the Supreme Court granted the plaintiff's unopposed motion for leave to enter a default judgment on the issue of liability against the defendants.  The defendant Sunny Builders N.Y. Corp. (hereinafter the defendant) moved pursuant to CPLR 5015(a)(1) to vacate so much of the order entered December 3, 2018, as granted that branch of the plaintiff's motion which was for leave to enter a default judgment against it.  By order entered April 18, 2019, the court granted the defendant's motion.  The plaintiff appealed from this order.

In April 2020, the plaintiff moved for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against the defendant.  By order entered January 4, 2021, the Supreme Court denied the plaintiff's motion.  The plaintiff appealed from this order as well.

Subsequently, this Court reversed the order entered April 18, 2019, and denied the defendant's motion to vacate so much of the order entered December 3, 2018, as granted that branch of the plaintiff's motion which was for leave to enter a default judgment against it (see Caguana v. Beach 22, LLC, 191 A.D.3d 835, 835–836, 138 N.Y.S.3d 909).  As a result, so much of the order entered December 3, 2018, as granted that branch of the plaintiff's motion which was for leave to enter a default judgment against the defendant on the issue of liability was, in effect, reinstated.  Thus, this appeal from the order entered January 4, 2021, denying the plaintiff's motion for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against the defendant, has been rendered academic (see Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714, 431 N.Y.S.2d 400, 409 N.E.2d 876;  Chestnut Ridge Assoc., LLC v. 30 Sephar Lane, Inc., 169 A.D.3d 994, 995, 95 N.Y.S.3d 255;  Carmo v. Verizon, 13 A.D.3d 329, 329, 786 N.Y.S.2d 104).

IANNACCI, J.P., GENOVESI, DOWLING and VOUTSINAS, JJ., concur.