IN RE: BUFFALO CITY CEMETERY (2024)

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

IN RE: BUFFALO CITY CEMETERY, INC., Also Known as Forest Lawn, Petitioner-Respondent, v. 215 LOT OWNERS and/or Next-of-Kin for Decedents Interred at St. Matthew's Cemetery, Respondents-Appellants.

244 Decided: May 03, 2024

PRESENT: WHALEN, P.J., LINDLEY, OGDEN, NOWAK, AND DELCONTE, JJ.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR RESPONDENTS-APPELLANTS. GOLDBERG SEGALLA LLP, BUFFALO (MEGHAN M. BROWN OF COUNSEL), FOR PETITIONER-RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum: In this proceeding pursuant to Not-for-Profit Corporation Law § 1510 (e), respondents appeal from a decision granting petitioner's request for a judgment approving, nunc pro tunc, the relocation of 215 graves within its cemetery in West Seneca. It is well settled, however, that “no appeal lies from a decision” (Gunn v. Palmieri, 86 N.Y.2d 830, 830, 634 N.Y.S.2d 435, 658 N.E.2d 212 [1995]; see CPLR 5512 [a]; Garcia v. Town of Tonawanda, 194 A.D.3d 1479, 1479-1480, 143 N.Y.S.3d 635 [4th Dept. 2021]; Kuhn v. Kuhn, 129 A.D.2d 967, 967, 514 N.Y.S.2d 284 [4th Dept. 1987]). Although respondents ask us to treat the decision as a judgment and thereby entertain their appeal, we lack discretion to do so inasmuch as the decision from which they appeal lacks the essential requirements of a judgment (see generally Nicol v. Nicol, 179 A.D.3d 1472, 1473, 118 N.Y.S.3d 833 [4th Dept. 2020]). We therefore dismiss the appeal without addressing the merits of respondents’ contentions.

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