EDGE MANAGEMENT CONSULTING INC v. IRMAS (2003)

Appeal from decision and order, Supreme Court, New York County (Paula Omansky, J.), entered June 17, 2002, which, to the extent appealed from, stated that appellant “willingly accepted a duty to obtain insurance for [respondent] Irmas and [respondent] Trump,” unanimously dismissed, without costs.

The language purportedly appealed from is dicta in the context of the motion court's decision and order, inter alia, denying second fourth-party defendant Travelers' cross motion for summary judgment dismissing the second fourth-party action brought by respondent Irmas to obtain, inter alia, a declaration that Travelers is obliged to defend her in the main action.   Accordingly, since “disagreement with certain dicta in the order does not furnish a basis to take an appeal” (9th & 10th St., LLC v. Adopt-A-Bldg., Inc., 188 Misc.2d 611, 728 N.Y.S.2d 855, citing Pennsylvania Gen. Ins. Co. v. Austin Powder Co., 68 N.Y.2d 465, 472-473, 510 N.Y.S.2d 67, 502 N.E.2d 982;  and see Schuster v. Schweitzer, 203 A.D.2d 552, 612 N.Y.S.2d 933), the appeal must be dismissed (see also CPLR 5511).

We would note, however, that the record does not in its present state permit the conclusion that appellant did in fact willingly assume a duty to obtain insurance for respondents Irmas and Trump.   It would appear that there are issues of fact in that regard.