

Aspen Am. Ins. Co. v Kodukula (2016 NY Slip Op 03976)





Aspen Am. Ins. Co. v Kodukula


2016 NY Slip Op 03976


Decided on May 19, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on May 19, 2016

Tom, J.P., Saxe, Richter, Gische, Webber, JJ.


1204 160606/14

[*1]Aspen American Insurance Company as subrogee of Ventrex LLC, Plaintiff-Appellant, ——
vSanghamitra Kodukula, Defendant, Flat Rate Movers, Ltd., Defendant-Respondent.


Methfessel & Werbel, New York (Fredric Paul Gallin of counsel), for appellant.
A. Smith Law Group, LLP, New York (Andrea J. Smith of counsel), for respondent.

Appeal from order, Supreme Court, New York County (Barbara Jaffe, J.), entered July 24, 2015, which granted plaintiff's motion for leave to reargue the court's prior order, entered April 28, 2015, only to the extent that it required that plaintiff proceed by cross motion for leave to replead and submit an amended complaint, and upon reargument, vacated the requirement and otherwise adhered to its prior order, unanimously dismissed, without costs, as academic.
The motion court dismissed plaintiff's claims as against Flat Rate for failure to state a cause of action, and thus plaintiff was free to commence a new action for the identical relief (see  CPLR 205[a]). Inasmuch as plaintiff has commenced a new action against Flat Rate, dismissal of the appeal, based on the court's denial of plaintiff's motion for leave to replead, is warranted.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 19, 2016
CLERK


