Gribbin v. Kearns , 687 N.Y.S.2d 283 ( 1999 )

—In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Franco, J.), dated June 24, 1998, which (1) denied, as untimely, that branch of their motion which was for summary judgment dismissing the complaint, (2) denied that branch of their motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, and (3) failed to rule on that branch of their motion which was for an order of preclusion.

Ordered that the appeal from so much of the order as failed to rule on that branch of the defendants’ motion which was for an order of preclusion is dismissed; and it is further,

Ordered that the order is affirmed insofar as reviewed; and it is further,

Ordered that the respondent is awarded one bill of costs.

The Supreme Court properly denied as untimely that branch of the defendants’ motion which was for summary judgment dismissing the complaint (see, CPLR 3212 [a]; Deinhardt v Vought, 258 AD2d 432; Olzaski v Locust Val. Cent. School Dist., 256 AD2d 320).

Since the Supreme Court did not rule on that branch of the defendants’ motion which was for an order of preclusion, that branch of the motion is still pending and undecided, and is not properly before this Court (see, Weitzenberg v Nassau County Dept. of Recreation & Parks, 249 AD2d 538; Katz v Katz, 68 AD2d 536).

The defendants’ remaining contentions are without merit. S. Miller, J. P., O’Brien, Ritter and Santucci, JJ., concur.