HOLNESS v. ABC (2026)

Appeal from order, Supreme Court, Bronx County (Joseph E. Capella, J.), entered on or about March 8, 2024, which granted so much of the motion of defendant Gold Crest Care Center Inc., doing business as Gold Crest Care Center (GCCC), as was to dismiss the complaint as against it for failure to state a cause of action (CPLR 3211[a][7] ), unanimously dismissed, without costs, as taken from a non-appealable paper.

A court may raise the issue of lack of subject matter jurisdiction on its own motion at any stage of the action (see e.g. Financial Indus. Regulatory Auth., Inc. v. Fiero, 10 N.Y.3d 12, 17, 853 N.Y.S.2d 267, 882 N.E.2d 879 [2008] ).  This Court's jurisdiction “is a creature of statute.  No appeal lies to the Appellate Division except by statutory authority, the absence of which precludes a right of appeal” (Matter of Friedman, 19 A.D.2d 120, 124, 241 N.Y.S.2d 793 [3d Dept. 1963], appeal dismissed 375 U.S. 10, 84 S.Ct. 70, 11 L.Ed.2d 40 [1963] ).  Accordingly, an improper notice of appeal fails to invoke this Court's statutory authority and, thus, deprives it of subject matter jurisdiction to hear the appeal (see Kozel v. Kozel, 161 A.D.3d 699, 699–700, 78 N.Y.S.3d 317 [1st Dept. 2018], lv dismissed 32 N.Y.3d 1089, 90 N.Y.S.3d 636, 114 N.E.3d 1089 [2018] ).

In this case, on March 26, 2024, the court entered judgment upon the order granting GCCC's motion to dismiss the complaint as against it.  On April 8, 2024, plaintiff noticed an appeal from the order, but she did not notice an appeal from the judgment.  Plaintiff's right to directly appeal the intermediate order terminated with the entry of the final judgment (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 [1976] ).  Our discretion to deem a notice of appeal from an order to be a premature notice of appeal from a judgment is extinguished when the judgment is entered before service of the notice of appeal from the order, as occurred here (see CPLR 5501[c] ).  Accordingly, we are without jurisdiction to consider plaintiff's arguments on appeal.