Firedoor Corp. of America v. Reliance Electric Co. (56 A.D.2d 523, 1977)

Order, Supreme Court, Bronx County, entered April 27, 1976, which granted plaintiff's motion for partial summary judgment in the sum of $1,869, with interest, on its first cause of action; severed plaintiffs remaining cause of action and the defendant-appellant’s counterclaims and directed that the action continue as to the balance claimed to be due plaintiff on its first cause of action and stayed entry of partial judgment pending determination of the remaining causes and counterclaims, unanimously reversed, on the law; the order of said court, entered August 12, 1976, denying plaintiff’s motion for reargument and defendant-appellant’s cross motion to renew (although denominated as one to reargue) is unanimously modified, on the law, to the extent of granting the cross motion to renew, and upon such renewal the order granting plaintiff’s motion for partial summary judgment is reversed as aforesaid, and plaintiff’s motion for partial summary judgment denied; Appellants shall recover of respondent $60 costs and disbursements of this appeal. Initially, it is noted that under CPLR 5517 (subd [b]) this court, in reviewing the order entered April 27, 1976, which was appealed from, may also review the subsequent order of Special Term entered August 12, 1976 denying defendant-appellant’s cross motion to renew which was inadvertently termed as seeking reargument. A motion based on additional facts, such as a motion to renew, clearly is embraced within CPLR 5517 (subd [a], par 3). Of course "If a timely appeal has in fact been taken from the subsequent order, there is no need for this remedy; in such event, CPLR 5517 is inapplicable and the case law generally dismisses a contemporaneous appeal from the original order as 'academic’ ” (7 Weinstein-Korn-Miller, NY Civ Prac, par 5517.01). Under the circumstances herein, it is entirely appropriate that we additionally review the subse