JOHNSON v. [And A Third-Party Action]

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

Christopher JOHNSON, Plaintiff-Respondent, v. GEORGE A. FULLER COMPANY, Defendant-Respondent, Atlas Title & Marble Works, Inc., et al., Defendants, Professional Security Bureau, Ltd., Defendant-Appellant. [And A Third-Party Action]

Decided: January 28, 1997

Before NARDELLI, J.P., and RUBIN, TOM and ANDRIAS, JJ. Michael Conforti, for plaintiff-respondent. John Tumelty, for defendant-respondent. Steven B. Prystowsky, for defendant-appellant.

Order, Supreme Court, New York County (Louis York, J.), entered on or about October 18, 1995, which, insofar as appealed from, deemed defendant-appellant's cross motion for leave to file a summary judgment motion to be a motion for summary judgment, and denied the motion, unanimously affirmed, without costs.

To the extent that appellant's cross motion, denominated one for leave to file a summary judgment motion, is not deemed one for summary judgment, it is merely a motion to reargue a prior order of another Justice, the denial of which is not appealable (Kean v. Phelps, 186 A.D.2d 368, 588 N.Y.S.2d 774).   That prior order, which, upon granting plaintiff leave to amend his complaint, prohibited the parties from making a summary judgment motion until completion of all discovery, was adhered to by orders of two other Justices, never appealed by appellant and constituted the law of the case (see, Martin v. City of Cohoes, 37 N.Y.2d 162, 165, 371 N.Y.S.2d 687, 332 N.E.2d 867).  Searching the record on appeal, as appellant asks us to do, we find that, at the time appellant made the instant motion, there was discovery outstanding.   We note that defendant can still move for summary judgment after all discovery has taken place.

MEMORANDUM DECISION.