LaGuardia v. City of New York

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Ramirez, J.), dated October 30, 1996, which, upon an order of the same court dated February 14, 1996, granting the defendant’s oral motion to dismiss the complaint, is in favor of the defendant. The notice of appeal from the order dated February 14,1996, is deemed a premature notice of appeal from the judgment (see, CPLR 5520 [c]).

Ordered that the judgment is reversed, on the law, with costs, the order dated February 14, 1996, is vacated, and the defendant’s motion to dismiss the complaint is denied.

The defendant’s oral motion to dismiss the complaint was unsupported by affidavits, sworn testimony, or any other competent submission which would warrant granting it (see, Kaiser v J & S Realty, 173 AD2d 920; Double A Limousine Serv. v New York, N. Y. Limousine Serv., 130 AD2d 403; cf., Valenti Elec. Co. v Power Line Constructors, 123 AD2d 604). The record before this Court contains only five pages of oral colloquy and the Supreme Court’s handwritten order. Inasmuch as the record fails to support the defendant’s entitlement to judgment, the judgment appealed from must be reversed and the motion denied. O’Brien, J. P., Thompson, Joy and Florio, JJ., concur.