MANDEL v. ADLER (1999)

Order, Supreme Court, New York County (Barry Cozier, J.), entered April 23, 1999, which, insofar as appealed from, denied defendants-appellants' cross-motion to amend the caption, unanimously reversed, on the law, without costs, the cross-motion granted, and the caption amended to read “ Philip Mandel and American Friends of Rabbinical College Kol Thora, Inc., Plaintiffs, against George Adler, Defendant.”

This court's previous decision in the instant litigation dismissed several of plaintiffs' causes of action and clarified that the action had been dismissed against all defendants other than George Adler (Mandel v. Adler, 248 A.D.2d 323, 670 N.Y.S.2d 477).   By order entered July 30, 1998, we denied plaintiffs' motion for leave to appeal to the Court of Appeals (Mandel v. Adler, 248 A.D.2d 323, 670 N.Y.S.2d 477).   Thereafter, plaintiffs moved to resettle the order, and defendants cross-moved to amend the caption to reflect that Adler was the only remaining defendant.   However, the IAS court denied the cross-motion as premature since plaintiffs might still appeal to the Court of Appeals concerning the grant of summary judgment to the other named defendants.

The IAS court should have granted the cross-motion.   Plaintiffs did not in fact make a timely motion to the Court of Appeals for leave to appeal.   Moreover, the Court of Appeals would not have jurisdiction because this court's order did not finally determine the action (CPLR 5611;  22 NYCRR 500.11 [d][1][iv] ). Nor does the exception apply, pursuant to CPLR 5602(a)(2), for non-final orders involving a proceeding instituted by or against public officers.   The instant case is a shareholder action between private parties for breach of fiduciary duty.   Since this court's dismissal of the action against all defendants save Adler is not subject to further review at this time, the portion of defendants' motion that sought to amend the caption is granted.

MEMORANDUM DECISION.