Moore defendant in New York

2013Passenger Corp., 71 AD3d 454, 455 [1st Dept 2010]).

2013Passenger Corp., 71 AD3d 454, 455 [1st Dept 2010]).

2013A question of fact also exists as to whether B & P launched an instrument of harm or exacerbated a dangerous condition by either failing to inspect or inadequately inspecting the Moore defendants’ firebox, or “certifying]” to the Moore defendants that the fireplace was safe to use by stating that it was “good to go,” especially since the Moore defendants testified that once their neighbor told them that smoke entered into her home, they had stopped using the fireplace and only resumed use thereof after B & P completed its work (see Stiver v Good & Fair Carting & Moving, Inc., 9 NY3d 253 [2007]

2013A question of fact also exists as to whether B & P launched an instrument of harm or exacerbated a dangerous condition by either failing to inspect or inadequately inspecting the Moore defendants’ firebox, or “certifying]” to the Moore defendants that the fireplace was safe to use by stating that it was “good to go,” especially since the Moore defendants testified that once their neighbor told them that smoke entered into her home, they had stopped using the fireplace and only resumed use thereof after B & P completed its work (see Stiver v Good & Fair Carting & Moving, Inc., 9 NY3d 253 [2007]

2013Co., 89 NY2d 425, 429-430 [1996]; Quizhpe v Luvin Constr., 70 AD3d 912 [2d Dept 2010]; Filannino v Triborough Bridge & Tunnel Auth., 34 AD3d 280, 281 [1st Dept 2006], appeal dismissed 9 NY3d 862 [2007]). * The Moore defendants’ motion seeking to dismiss the complaint as against them was properly denied.

2013Co., 89 NY2d 425, 429-430 [1996]; Quizhpe v Luvin Constr., 70 AD3d 912 [2d Dept 2010]; Filannino v Triborough Bridge & Tunnel Auth., 34 AD3d 280, 281 [1st Dept 2006], appeal dismissed 9 NY3d 862 [2007]). * The Moore defendants’ motion seeking to dismiss the complaint as against them was properly denied.

2013Co., 89 NY2d 425, 429-430 [1996]; Quizhpe v Luvin Constr., 70 AD3d 912 [2d Dept 2010]; Filannino v Triborough Bridge & Tunnel Auth., 34 AD3d 280, 281 [1st Dept 2006], appeal dismissed 9 NY3d 862 [2007]). * The Moore defendants’ motion seeking to dismiss the complaint as against them was properly denied.

2013Co., 89 NY2d 425, 429-430 [1996]; Quizhpe v Luvin Constr., 70 AD3d 912 [2d Dept 2010]; Filannino v Triborough Bridge & Tunnel Auth., 34 AD3d 280, 281 [1st Dept 2006], appeal dismissed 9 NY3d 862 [2007]). * The Moore defendants’ motion seeking to dismiss the complaint as against them was properly denied.

2013While B & P correctly contends that plaintiff lacks standing to appeal from that portion of the subject order which dismissed the Moore defendants’ cross claims against B & P (see D’Ambrosio v City of New York, 55 NY2d 454, 459-460 [1982]; 11 Essex St.

2013While B & P correctly contends that plaintiff lacks standing to appeal from that portion of the subject order which dismissed the Moore defendants’ cross claims against B & P (see D’Ambrosio v City of New York, 55 NY2d 454, 459-460 [1982]; 11 Essex St.

2013Contrary to the Moore defendants’ contention, the foregoing certainly constitutes more than a mere “general awareness” that a hazard ous condition “may be present” (Gordon v American Museum of Natural History, 67 NY2d 836, 838 [1986]).

2013Contrary to the Moore defendants’ contention, the foregoing certainly constitutes more than a mere “general awareness” that a hazard ous condition “may be present” (Gordon v American Museum of Natural History, 67 NY2d 836, 838 [1986]).

2013A question of fact also exists as to whether B & P launched an instrument of harm or exacerbated a dangerous condition by either failing to inspect or inadequately inspecting the Moore defendants’ firebox, or “certifying]” to the Moore defendants that the fireplace was safe to use by stating that it was “good to go,” especially since the Moore defendants testified that once their neighbor told them that smoke entered into her home, they had stopped using the fireplace and only resumed use thereof after B & P completed its work (see Stiver v Good & Fair Carting & Moving, Inc., 9 NY3d 253 [2007]

2013A question of fact also exists as to whether B & P launched an instrument of harm or exacerbated a dangerous condition by either failing to inspect or inadequately inspecting the Moore defendants’ firebox, or “certifying]” to the Moore defendants that the fireplace was safe to use by stating that it was “good to go,” especially since the Moore defendants testified that once their neighbor told them that smoke entered into her home, they had stopped using the fireplace and only resumed use thereof after B & P completed its work (see Stiver v Good & Fair Carting & Moving, Inc., 9 NY3d 253 [2007]

2013The complaint should not have been dismissed as against B & P because a question of fact exists as to whether B & P owed Linda Trager, plaintiffs subrogor, a duty as a third-party beneficiary to B & P’s contract with the Moore defendants (see Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 181-182 [2011]; Mendel v Henry Phipps Plaza W, Inc., 6 NY3d 783, 786 [2006]).

2013The complaint should not have been dismissed as against B & P because a question of fact exists as to whether B & P owed Linda Trager, plaintiffs subrogor, a duty as a third-party beneficiary to B & P’s contract with the Moore defendants (see Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 181-182 [2011]; Mendel v Henry Phipps Plaza W, Inc., 6 NY3d 783, 786 [2006]).

2013Since the prevention of smoke into Trager’s home could have been an immediate, and not merely incidental, benefit of the contract (see McDonald v Riverbay Corp., 308 AD2d 345, 346 [1st Dept 2003]), and plaintiff, as the party summary judgment opponent, is entitled to have all reasonable inferences drawn in its favor (see Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt, L.P., 7 NY3d 96, 105-106 [2006]), the motion should have been denied.

2013Since the prevention of smoke into Trager’s home could have been an immediate, and not merely incidental, benefit of the contract (see McDonald v Riverbay Corp., 308 AD2d 345, 346 [1st Dept 2003]), and plaintiff, as the party summary judgment opponent, is entitled to have all reasonable inferences drawn in its favor (see Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt, L.P., 7 NY3d 96, 105-106 [2006]), the motion should have been denied.

2013The complaint should not have been dismissed as against B & P because a question of fact exists as to whether B & P owed Linda Trager, plaintiffs subrogor, a duty as a third-party beneficiary to B & P’s contract with the Moore defendants (see Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 181-182 [2011]; Mendel v Henry Phipps Plaza W, Inc., 6 NY3d 783, 786 [2006]).

2013The complaint should not have been dismissed as against B & P because a question of fact exists as to whether B & P owed Linda Trager, plaintiffs subrogor, a duty as a third-party beneficiary to B & P’s contract with the Moore defendants (see Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 181-182 [2011]; Mendel v Henry Phipps Plaza W, Inc., 6 NY3d 783, 786 [2006]).

2013Since the prevention of smoke into Trager’s home could have been an immediate, and not merely incidental, benefit of the contract (see McDonald v Riverbay Corp., 308 AD2d 345, 346 [1st Dept 2003]), and plaintiff, as the party summary judgment opponent, is entitled to have all reasonable inferences drawn in its favor (see Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt, L.P., 7 NY3d 96, 105-106 [2006]), the motion should have been denied.

2013Since the prevention of smoke into Trager’s home could have been an immediate, and not merely incidental, benefit of the contract (see McDonald v Riverbay Corp., 308 AD2d 345, 346 [1st Dept 2003]), and plaintiff, as the party summary judgment opponent, is entitled to have all reasonable inferences drawn in its favor (see Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt, L.P., 7 NY3d 96, 105-106 [2006]), the motion should have been denied.

2017As a preliminary matter we note that, insofar as the amended order in appeal No. 2 denied the motion for leave to reargue, it is not appealable, and we therefore dismiss the appeal to that extent on that ground (see Gaiter v City of Buffalo Bd. of Educ., 142 AD3d 1349 , -2- 160 CA 15-01971 1350; Indus PVR LLC v MAA-Sharda, Inc., 140 AD3d 1666, 1667 , lv dismissed in part and denied in part 28 NY3d 1059 ).

2017As a preliminary matter we note that, insofar as the amended order in appeal No. 2 denied the motion for leave to reargue, it is not appealable, and we therefore dismiss the appeal to that extent on that ground (see Gaiter v City of Buffalo Bd. of Educ., 142 AD3d 1349 , 1350 [2016]; Indus PVR LLC v MAA-Sharda, Inc., 140 AD3d 1666, 1667 [2016], lv dismissed in part and denied in part 28 NY3d 1059 [2016]).

2024Inasmuch as plaintiffs did not oppose the part of Moore's motion below which sought dismissal of the second cause of action against him, sounding in intentional infliction of emotional distress, plaintiffs' contentions on appeal with respect to that cause of action are not preserved for our review ( see Smisloff v Stott [appeal No. 2], 133 AD3d 1331, 1331-1332 [4th Dept 2015]; see generally Ciesinski v Town of Aurora , 202 AD2d 984 , 985 [4th Dept 1994]).

2024Inasmuch as plaintiffs did not oppose the part of Moore's motion below which sought dismissal of the second cause of action against him, sounding in intentional infliction of emotional distress, plaintiffs' contentions on appeal with respect to that cause of action are not preserved for our review ( see Smisloff v Stott [appeal No. 2], 133 AD3d 1331, 1331-1332 [4th Dept 2015]; see generally Ciesinski v Town of Aurora , 202 AD2d 984 , 985 [4th Dept 1994]).

2024Inasmuch as plaintiffs did not oppose the part of Moore's motion below which sought dismissal of the second cause of action against him, sounding in intentional infliction of emotional distress, plaintiffs' contentions on appeal with respect to that cause of action are not preserved for our review ( see Smisloff v Stott [appeal No. 2], 133 AD3d 1331, 1331-1332 [4th Dept 2015]; see generally Ciesinski v Town of Aurora , 202 AD2d 984 , 985 [4th Dept 1994]).

2024Inasmuch as plaintiffs did not oppose the part of Moore's motion below which sought dismissal of the second cause of action against him, sounding in intentional infliction of emotional distress, plaintiffs' contentions on appeal with respect to that cause of action are not preserved for our review ( see Smisloff v Stott [appeal No. 2], 133 AD3d 1331, 1331-1332 [4th Dept 2015]; see generally Ciesinski v Town of Aurora , 202 AD2d 984 , 985 [4th Dept 1994]).

2021We note that Rugar did not seek summary judgment on this ground and only asserted it in a later "cross motion" in response to Benjamin Moore's motion. [FN2] Given that this is a legal issue and plaintiff had the opportunity to address it when opposing Benjamin [*3]Moore's motion, it was an improvident exercise of discretion for Supreme Court not to entertain this ground on behalf of Rugar and grant the relief sought by him, especially where, under the circumstances of this case, doing so would be a preferable use of judicial resources ( see Miles A. Kletter, D.M.D. & Andrew S. Levine, D.D.S.,

2021We note that Rugar did not seek summary judgment on this ground and only asserted it in a later "cross motion" in response to Benjamin Moore's motion. [FN2] Given that this is a legal issue and plaintiff had the opportunity to address it when opposing Benjamin [*3]Moore's motion, it was an improvident exercise of discretion for Supreme Court not to entertain this ground on behalf of Rugar and grant the relief sought by him, especially where, under the circumstances of this case, doing so would be a preferable use of judicial resources ( see Miles A. Kletter, D.M.D. & Andrew S. Levine, D.D.S.,

2021We note that Rugar did not seek summary judgment on this ground and only asserted it in a later "cross motion" in response to Benjamin Moore's motion. [FN2] Given that this is a legal issue and plaintiff had the opportunity to address it when opposing Benjamin [*3]Moore's motion, it was an improvident exercise of discretion for Supreme Court not to entertain this ground on behalf of Rugar and grant the relief sought by him, especially where, under the circumstances of this case, doing so would be a preferable use of judicial resources ( see Miles A. Kletter, D.M.D. & Andrew S. Levine, D.D.S.,

2021We note that Rugar did not seek summary judgment on this ground and only asserted it in a later "cross motion" in response to Benjamin Moore's motion. [FN2] Given that this is a legal issue and plaintiff had the opportunity to address it when opposing Benjamin [*3]Moore's motion, it was an improvident exercise of discretion for Supreme Court not to entertain this ground on behalf of Rugar and grant the relief sought by him, especially where, under the circumstances of this case, doing so would be a preferable use of judicial resources ( see Miles A. Kletter, D.M.D. & Andrew S. Levine, D.D.S.,