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Tracy Preston, As Administrator of the Estate of Eric S. Lehman, Deceased v. Apch

October 7, 2011

TRACY PRESTON, AS ADMINISTRATOR OF THE ESTATE OF ERIC S. LEHMAN, DECEASED,
PLAINTIFF-RESPONDENT,
v.
APCH, INC., ALSTOM POWER, INC., AND COMBUSTION ENGINEERING, INC.,
DEFENDANTS-APPELLANTS.



Appeal from an order of the Supreme Court, Allegany County (James E. Euken, A.J.), entered May 14, 2010.

The opinion of the court was delivered by: Fahey, J.

Preston v Apch, Inc.

Decided on October 7, 2011

Appellate Division, Fourth Department

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.

PRESENT: CENTRA, J.P., FAHEY, SCONIERS, GREEN, AND MARTOCHE, JJ.

OPINION AND

The order, insofar as appealed from, denied in part the motion of defendants to dismiss the amended complaint.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Opinion by Fahey, J.: Plaintiff commenced this action seeking damages for the wrongful

death and conscious pain and suffering of plaintiff's decedent resulting from an

accident that occurred while he was an employee of defendant Alstom Power, Inc. (Alstom). Defendants moved to dismiss the amended complaint against them, and Supreme Court granted that part of the motion with respect to the seventh cause of action against the three defendants to the extent that it seeks discovery, a procedural rather than a substantive remedy, and thus "fails to state a claim for which relief may be granted."

The primary issue before us on appeal is whether the court properly denied those parts of defendants' motion seeking dismissal of the remainder of the amended complaint against defendants APCH, Inc. (APCH) and Alstom, pursuant to CPLR 3211 (a) (1). We conclude, under the facts presented here, that the court properly denied those parts of the motion. In addition, we conclude that the court ...


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