(dissenting and voting to affirm the order insofar as appealed and cross-appealed from, with the following memorandum): In light of my dissent from this Court’s determination of an appeal and cross appeal from an interlocutory judgment of the Supreme Court, Kings County, dated June 28, 2005 (see Brooks v Maintenance Serv. Resources, Inc., 44 AD3d 887 [2007] [decided herewith]), I would not dismiss the appeal and cross appeals as academic. Rather, I would hold that the Supreme Court providently exercised its discretion in granting the defendant *893third-party plaintiff and the third-party defendant leave to renew their respective motions pursuant to CPLR 4404 (a) (see CPLR 2221 [e] [3]) and, upon renewal, providently granted, in the interests of justice, those branches of the motions which were to set aside the jury verdict awarding damages and for a new trial on the issue of damages (see Matter of De Lano, 34 AD2d 1031, 1032 [1970], affd 28 NY2d 587 [1971]; McCarthy v Port of N.Y. Auth., 21 AD2d 125 [1964]). Moreover, contrary to the contentions of the defendant third-party plaintiff and the third-party defendant, the Supreme Court providently exercised its discretion in declining to dismiss the complaint as a sanction (cf. CPLR 3216 [3]; Sisca v City of Yonkers, N.Y., 24 AD3d 531, 532 [2005]). [See 11 Misc 3d 1067(A), 2006 NY Slip Op 50420(U) (2006).]