PROPERTIES LLC v. ELMAR ASSOCIATES LLC (2008)

In related actions, inter alia, to recover damages for breach of contract and for a judgment declaring the rights of the parties in certain escrowed funds, B & N Properties, LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Jackson, J.), dated March 1, 2007, as denied its cross motion for summary judgment dismissing the counterclaims and cross claims asserted against it by Elmar Associates, LLC, in Action Nos. 1 and 2, respectively, and dismissing the complaint insofar as asserted against it in Action No. 3, and Elmar Associates, LLC, Martin B. Gross, Elliot S. Gross, Gross & Gross, LLP, and Harry S. Katz cross-appeal, as limited by their notice of appeal and brief, from so much of the same order as stated that the United States Bankruptcy Court retained jurisdiction over the distribution of the escrowed funds.

ORDERED that the cross appeal is dismissed;  and it is further,

ORDERED that the order is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the respondents-appellants.

 The respondents-appellants concede that the statement they are seeking to challenge on their cross appeal is dicta.   Since this is the only issue raised by the respondents-appellants, the cross appeal must be dismissed, as no appeal lies from dicta (see Companion Life Ins. Co. of N.Y. v. All State Abstract Corp., 35 A.D.3d 518, 829 N.Y.S.2d 535;  Edge Mgt. Consulting v. Irmas, 306 A.D.2d 69, 761 N.Y.S.2d 172).

 The Supreme Court denied the appellant-respondent's cross motion for summary judgment dismissing the cross claims and counterclaims asserted against it by Elmar Associates, LLC, in Action Nos. 1 and 2, respectively, and dismissing the complaint insofar as asserted against it in Action No. 3. We affirm, but for a reason different from that stated by the Supreme Court.   As the respondents-appellants argue, the cross motion should have been denied as having been made in violation of the rule against successive motions for summary judgment (see Selletti v. Liotti, 45 A.D.3d 669, 844 N.Y.S.2d 878;  Williams v. City of White Plains, 6 A.D.3d 609, 775 N.Y.S.2d 868).   In any event, we note that the Supreme Court correctly determined that there are triable issues of fact which preclude the granting of summary judgment (see Capuano v. Platzner Intl. Group, Ltd., 5 A.D.3d 620, 774 N.Y.S.2d 780;  Davidson Metals Corp. v. Marlo Dev. Co., 262 A.D.2d 599, 691 N.Y.S.2d 898).