Jones v. Park Realty

(dissenting). We respectfully dissent.

Inasmuch as we concluded in our dissenting memorandum in Jones v Park Realty ([appeal No. 2] 168 AD2d 945, 946 [decided herewith]) that the trial court properly denied summary judgment this appeal is not moot. We concur with Supreme Court’s ruling that set aside the jury’s verdict in the interest of justice and granted a new trial. Consequently, we would affirm. (Appeal from order of Supreme Court, Erie County, Joslin, J. — set aside verdict.) Present — Doerr, J. P., Boomer, Pine, Balio and Lawton, JJ.

— Appeal dismissed without costs. Memorandum: Because we have reversed the order denying the motion for summary judgment and have granted summary judgment dismissing the complaint, the appeal from this order is moot (see, Jones v Park Realty [appeal No. 2], 168 AD2d 945 [decided herewith]).

All concur except Balio and Lawton, JJ., who dissent and vote to affirm in the following memorandum.