Coneys v. Johnson Controls, Inc.

In a consolidated action to recover damages for personal injuries, the defendant Johnson Controls, Inc., appeals from an order of the Supreme Court, Westchester County (Barone, J.), dated January 27, 2004, which denied its motion to dismiss the action commenced under Index No. 16905/01, and granted the plaintiffs 577 unopposed cross motion to compel it to answer the complaint in that action and to consolidate that action with an action commenced under Index No. 16859/03. Ordered that the appeal is dismissed, with costs. The appeal from so much of the order as granted the cross motion is dismissed on the ground that no appeal lies from so much of an order entered upon a party’s default in opposing a motion (see CPLR 5511; Lumbermen’s Mut. Cas. Co. v Fireman’s Fund Am. Ins. Co., 117 AD2d 588 [1986]). The defendant Johnson Controls, Inc., also appeals from so much of the order as denied its motion pursuant to CPLR 3012 (b) to dismiss an action commenced under Index No. 16905/01. However, the plaintiff timely commenced an identical second action under Index No. 16859/03, which, upon the unopposed cross motion of the plaintiff, was consolidated with the action commenced under Index No. 16905/01. Thus, the appeal from so much of the order as denied the motion has been rendered academic (see Northpark Assoc., L.P. v Westcon, Inc., 8 AD3d 644 [2004]; Burwell v Yonkers Gen. Hosp., 6 AD3d 478 [2004]; Samuels v Rosenberg, 178 AD2d 639 [1991]). Ritter, J.P., Schmidt, Cozier and Skelos, JJ., concur.