DeGennaro v. Church of Saint Apostle , 651 N.Y.S.2d 478 ( 1996 )

—Appeals by defendant Mark Anthony Cristini from an order, Supreme Court, New York County (Carol Huff, J.), entered January 18, 1994, which, inter alia, denied defendants’ motion to dismiss the complaint for failure to separately state and number the allegations of the complaint, and an order of the same court and Justice entered on or about December 23, 1994, which, inter alia, denied the cross-motion of defendants Dewan, Cusack and Harris to dismiss the amended complaint (Index No. 13889/93) and to dismiss the complaint in the consolidated action (Index No. 126890/94), unanimously dismissed, without costs.

This is an action for libel and slander commenced by the defendant parish’s former business manager against numerous parish officials. All of the defendants have entered into a written stipulation of settlement with plaintiff except for defendant Cristini, who is alleged to be a member of the parish’s finance council. He, as the sole remaining appellant, appeals from the order entered January 18, 1994, which denied defendants’ motion to dismiss the complaint pursuant to CPLR 3014 and 3024 (a) and (b). However, subsequent to the entry of that order, in an order entered August 19, 1994, the court granted defendants’ motion to dismiss the complaint for lack of personal jurisdiction over all defendants, including Cristini, other than defendants Dewan, Cusack and Harris. As a result, that complaint having been subsequently dismissed against defendant Cristini on jurisdictional grounds, his appeal from the court’s prior order denying dismissal on other grounds is rendered academic.

After the aforementioned dismissal, plaintiff commenced a new action under a new index number (Index No. 126890/94) against the previously dismissed defendants, including Cristini, and moved to consolidate the new action (Index No. 126890/94) with the original action (Index No. 13889/93), which continued against defendants Dewan, Cusack and Harris, and for reargument of the court’s August 19, 1994 order. These last named defendants consented to the proposed consolidation and cross-moved to dismiss the amended complaint (Index No. 13889/93), which was asserted only against the three movants and the complaint in the "Second” action, i.e„, Index No. 126890/94, which complaint included defendant Cristini among the named defendants. The IAS Court in its December 23, 1994 order, denied the cross-motion as to defendants Cusack and Harris and granted it as to defendant Dewan. Accordingly, inasmuch as defendant Cristini, as a nonmovant, is not an aggrieved party, his appeal from the order of December 23, 1994 must be dismissed (CPLR 5511). Concur— Milonas, J. P., Kupferman, Ross, Williams and Tom, JJ.