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Madera v. City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


June 9, 2009

YANIRIS MADERA, PARENT AND LEGAL GUARDIAN OF STEPHANIE MEDINA, ET AL., PLAINTIFFS-RESPONDENTS,
v.
THE CITY OF NEW YORK, DEFENDANT-APPELLANT, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, DEFENDANT.

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered May 15, 2008, which, in this action for personal injuries sustained when infant plaintiff was struck in the face by a baseball on public school grounds, to the extent appealed from, as limited by the briefs, upon reargument, adhered to its prior order, entered August 17, 2006, denying the City's cross motion to dismiss the complaint and/or for summary judgment, and which, inter alia, granted plaintiffs' cross motion to strike the City's answer, unanimously reversed, on the law, without costs, the cross motion to dismiss granted and the cross motion to strike the answer denied. The Clerk is directed to enter judgment in favor of defendant City dismissing the complaint as against it.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Sweeny, DeGrasse, Freedman, Abdus-Salaam, JJ.

8501/04

The complaint is dismissed against the City, since it is not a proper party to this action (see Corzino v City of New York, 56 AD3d 370 [2008]; Bailey v City of New York, 55 AD3d 426 [2008]; Perez v City of New York, 41 AD3d 378 [2007], lv denied 10 NY3d 708 [2008]).

In view of the foregoing, we need not address the parties' remaining arguments for affirmative relief.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090609

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