Hirsch v. City of New York

In an action to recover damages for personal injuries, the defendant City of New York appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Plug, J.), dated December 22, 2004, as failed to determine that branch of its cross motion which was to dismiss the complaint and all cross claims insofar as asserted against it pursuant to CPLR 3211 (a) (7). Ordered that the appeal is dismissed, without costs or disbursements. The only issue raised by the defendant City of New York on its appeal concerns that branch of its cross motion which was to dismiss the complaint and all cross claims insofar as asserted against it for failure to state a cause of action pursuant to CPLR 3211 (a) (7). Inasmuch as the Supreme Court failed to determine that branch of the cross motion, it remains pending and undecided and thus we dismiss the appeal (see Matter of Flood v Schopfer, 20 AD3d 417 [2005]; Katz v Katz, 68 AD2d 536, 542-543 [1979]). Miller, J.P., Ritter, Goldstein and Lunn, JJ., concur.