BRAITHWAITE v. New York City Transit Authority, et al., appellants. (2023)

Supreme Court, Appellate Division, Second Department, New York.

Sandra BRAITHWAITE, etc., respondent, v. CITY OF NEW YORK, defendant, New York City Transit Authority, et al., appellants.

2021–01651

Decided: October 18, 2023

HECTOR D. LASALLE, P.J., FRANCESCA E. CONNOLLY, LARA J. GENOVESI, HELEN VOUTSINAS, JJ.

Anna J. Ervolina, Brooklyn, NY (Timothy J. O'Shaughnessy of counsel), for appellants.

DECISION & ORDER

In an action, inter alia, to recover damages for wrongful death, the defendants New York City Transit Authority and Metropolitan Transit Authority appeal from an order of the Supreme Court, Kings County (Katherine A. Levine, J.), dated February 16, 2021. The order, insofar as appealed from, failed to determine those defendants’ cross-motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them.

ORDERED that the appeal is dismissed, without costs or disbursements.

We do not reach the arguments of the defendants New York City Transit Authority and Metropolitan Transit Authority regarding their cross-motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them. The cross-motion was not addressed in the order appealed from and, therefore, remains pending and undecided (see Katz v. Katz, 68 A.D.2d 536, 543, 418 N.Y.S.2d 99). Accordingly, we dismiss the appeal.

LASALLE, P.J., CONNOLLY, GENOVESI and VOUTSINAS, JJ., concur.

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