Patrylo v. Metro Fuel Oil Corp.

In an action to recover damages for personal injuries, etc., the defendant Metro Fuel Oil Corp. appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Barasch, J.), dated March 11, 1999, as denied its motion for summary judgment and granted those branches of the plaintiffs’ cross motion which were for leave to amend the complaint pursuant to CPLR 305 (c) to name Metro Terminals Corp. as a defendant and to serve a supplemental summons and amended complaint pursuant to CPLR 203 (b) (5). Ordered that the appeal from so much of the order as granted those branches of the plaintiffs’ cross motion which were for leave to amend the complaint pursuant to CPLR 305 (c) to name Metro Terminals Corp. as a defendant and to serve a supplemental summons and amended complaint pursuant to CPLR 203 (b) (5) is dismissed; and it is further, Ordered that the order is affirmed insofar as reviewed, with costs. The appeal from so much of the order as granted those branches of the plaintiffs’ cross motion which were for leave to [613] amend the complaint pursuant to CPLR 305 (c) to name Metro Terminals Corp. as a defendant and to serve a supplemental summons and amended complaint pursuant to CPLR 203 (b) (5) must be dismissed, because the appellant is not aggrieved by that part of the order (see, CPLR 5511; Caballero v Caballero, 247 AD2d 352; Gomberg v Gorman, 117 AD2d 583, 584; Richardson v Millard, 33 AD2d 820). The appellant’s motion for summary judgment was properly denied, as it failed to make a prima facie showing of its entitlement to summary judgment as a matter of law (see, Vasquez v RVA Garage, 238 AD2d 407). Ritter, J. P., Thompson, S. Miller and Florio, JJ., concur.