ANNE MACKIEWICZ AS EXECUTOR OF THE ESTATE OF PAUL JESSEN DECEASED PLAINTIFF RESPONDENT v. AUTUMN VIEW HEALTH CARE FACILITY AUTUMN VIEW HEALTH CARE FACILITY LLC THE MCGUIRE GROUP INC VESTRA SPVI LLC AND VESTRA SPV2 LLC DEFENDANTS APPELLANTS (2023)

Supreme Court, Appellate Division, Fourth Department, New York.

ANNE MACKIEWICZ, AS EXECUTOR OF THE ESTATE OF PAUL O. JESSEN, DECEASED, PLAINTIFF-RESPONDENT, v. AUTUMN VIEW HEALTH CARE FACILITY, AUTUMN VIEW HEALTH CARE FACILITY, LLC, THE MCGUIRE GROUP, INC., VESTRA SPVI, LLC, AND VESTRA SPV2, LLC, DEFENDANTS-APPELLANTS.

782 Decided: November 17, 2023

PRESENT: SMITH, J.P., LINDLEY, MONTOUR, GREENWOOD, AND DELCONTE, JJ.

HARRIS BEACH PLLC, NEW YORK CITY (BRIAN D. GINSBERG OF COUNSEL), FOR DEFENDANTS-APPELLANTS. BROWN CHIARI, LLP, BUFFALO (ANDREA N. CONJERTI OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that said appeal is unanimously dismissed without costs.

Memorandum: As limited by their brief, defendants appeal from an order that, inter alia, denied their motion insofar as it sought to dismiss the complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7). We conclude that the appeal must be dismissed inasmuch as that order was materially amended by a subsequent order (see Matter of Eric D. [appeal No. 1], 162 AD2d 1051, 1051 [4th Dept 1990]), and we decline to exercise our discretion to treat the notice of appeal as one taken from the subsequent order (see Matter of Justeen T., 17 AD3d 1148, 1148 [4th Dept 2005]).

Entered: November 17, 2023

Ann Dillon Flynn

Clerk of the Court

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