NAVERSEN v. GAILLARD (2007)

In an action, inter alia, to recover damages for breach of contract, the defendants appeal from (1) an order of the Supreme Court, Orange County (McGuirk, J.), dated January 11, 2005, which granted the plaintiff's motion for summary judgment, (2) so much of an order of same court dated March 24, 2005, as denied their motion for leave to reargue, and (3) a judgment of the same court entered August 4, 2005, which, upon the order dated January 11, 2005, is in favor of the plaintiff and against them in the principal sum of $263,232.

ORDERED that the appeals from the orders are dismissed;  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

 The appeal from the intermediate order dated January 11, 2005, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issues raised on the appeal from that order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[c] ).  The appeal from the order dated March 24, 2005, must be dismissed because no appeal lies from an order denying a motion for leave to reargue (see Fryar v. First Student, 21 A.D.3d 525, 800 N.Y.S.2d 582).

 On the plaintiff's motion for summary judgment, she established, prima facie, her entitlement to judgment as a matter of law, and the defendants failed to raise a triable issue of fact in opposition.   The Supreme Court properly determined that since the defendants were not beneficiaries of the G. Everett Gaillard Revocable Trust, they lacked standing to challenge the actions of the plaintiff as its trustee (see Matter of McManus, 47 N.Y.2d 717, 417 N.Y.S.2d 55, 390 N.E.2d 773;  Cashman v. Petrie, 14 N.Y.2d 426, 430, 252 N.Y.S.2d 447, 201 N.E.2d 24;  cf. Zeff v. Weissman, 209 A.D.2d 612, 613, 619 N.Y.S.2d 113).

The defendants' remaining contentions are without merit.