Trataros Constr., Inc. v. Insurance Co. of North America

In an action to recover damages for breach of a performance bond, the plaintiff appeals from an order of the Supreme Court, Kings County (Harkavy, J.), dated July 10, 2001, which denied its motion for summary judgment, and, sua sponte, stayed all proceedings in the action pending the determination of a related arbitration. Ordered that the appeal from so much of the order as, sua sponte, stayed all proceedings in the action pending determination of a related arbitration is dismissed, as that portion of the order is not appealable as of right and leave to appeal has not been granted (see CPLR 5701 [c]), and, in any event, the appeal from that portion of the order has been rendered academic since the related arbitration has concluded; and it is further, Ordered that the order is affirmed insofar as reviewed, with costs. The Supreme Court properly denied as premature the plaintiffs motion for summary judgment on its claims against the defendant to recover damages for breach of a performance [341] bond (see Pirrotta v Eklecco, 292 AD2d 362, Chun v Ecco III Enters., 268 AD2d 454). O’Brien, J.P., Krausman, Townes and Rivera, JJ., concur.