| Aspen Am. Ins. Co. v Kodukula |
| 2016 NY Slip Op 03976 [139 AD3d 545] |
| May 19, 2016 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Aspen American Insurance Company, as Subrogee of
Ventrex LLC, Appellant, v Sanghamitra Kodukula, Defendant, and Flat Rate Movers, Ltd., 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 Movers Ltd. 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. Concur—Tom, J.P., Saxe, Richter, Gische and Webber, JJ.