ABRAHAM v. TORATI (2023)

DECISION & ORDER

In an action, inter alia, to recover damages for fraud, the defendants appeal from an order of the Supreme Court, Queens County (Timothy J. Dufficy, J.), entered January 8, 2020.  The order denied the defendants' motion pursuant to CPLR 5015(a) to vacate an order of the same court (Jeremy S. Weinstein, J.) entered June 28, 2019, striking the defendants' answer upon their default in appearing at a trial conference, and directing an inquest on the issue of damages.

Motion by the plaintiffs to dismiss the appeal on the ground that the right of direct appeal therefrom terminated with the entry of a judgment in the action.  By decision and order on motion of this Court dated September 23, 2022, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeal, it is

ORDERED that the motion is granted and the appeal is dismissed, without costs or disbursements.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of a judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 383 N.Y.S.2d 285, 347 N.E.2d 647).  The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment in the action (see CPLR 5501[a][1];  Abraham v. Torati, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2023 WL 5944020 [Appellate Division Docket No. 2022–01523;  decided herewith]).

IANNACCI, J.P., MILLER, MALTESE and FORD, JJ., concur.