
    (November 17, 2003)
    Abraham Arrieta, Respondent, v T & C Tropical Products, Inc., Appellant, et al., Defendants.
    [768 NYS2d 478]
   In an action to recover damages for personal injuries, the defendant T & C Tropical Products, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Bangs County (Huttner, J.), dated August 14, 2001, as, sua sponte, in effect, modified an order of the same court dated May 23, 2001, by deleting the provision thereof granting its motion for summary judgment dismissing the complaint insofar as asserted against it and substituting therefor a provision granting the motion only to the extent of dismissing the cause of action pursuant to Vehicle and Traffic Law § 388.

Ordered that on the Court’s own motion, the notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted; and it further,

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the provision of the order dated May 23, 2001, granting the motion of the defendant T & C Tropical Products, Inc., for summary judgment dismissing the complaint insofar as asserted against it is reinstated.

In an order dated May 23, 2001, the Supreme Court granted the motion of the defendant T & C Tropical Products, Inc. (hereinafter T & C), for summary judgment dismissing the complaint insofar as asserted against it. It also granted the plaintiffs cross motion for leave to serve an amended complaint containing a cause of action for negligent entrustment against T & C. In the order appealed from, the Supreme Court considered the scope of its May 23, 2001, order, and indicated that only the cause of action in the original complaint pursuant to Vehicle and Traffic Law § 388 had been dismissed against T & C. However, the May 23, 2001, order clearly provided that all causes of action against T & C in the original complaint had been dismissed and, furthermore, the plaintiff never asserted a claim pursuant to Vehicle and Traffic Law § 388 in its original complaint. Accordingly, we reverse the order dated August 14, 2001, insofar as appealed from, and we reinstate the provision of the order dated May 23, 2001, granting T & C’s motion for summary judgment insofar as asserted against it. The only remaining claim against T & C, as asserted in the plaintiffs amended complaint, is to recover damages for negligent entrustment. Altman, J.E, S. Miller, Adams and Cozier, JJ., concur.  