WALDORF v. Estate of Helyn Q. Waldorf, etc., nonparty-appellant. (2023)

DECISION & ORDER

In an action to recover damages for malicious prosecution, nonparty Estate of Helyn Q. Waldorf appeals from an order of the Supreme Court, Suffolk County (Elizabeth H. Emerson, J.), dated February 17, 2021.  The order, insofar as appealed from, stated that nonparty Estate of Helyn Q. Waldorf “has no interest in Waldorf & Associates ․”

ORDERED that appeal is dismissed, without costs or disbursements.

Nonparty Estate of Helyn Q. Waldorf (hereinafter the Estate) moved for leave to intervene in this action to recover damages for malicious prosecution.  In an order dated February 17, 2021, the Supreme Court, among other things, denied the Estate's motion.  The Estate appeals.

The Estate appeals from dicta, and thus its appeal must be dismissed as no appeal lies from dicta (see Yang v. Northwell Health, Inc., 195 AD3d 662, 666;  B & N Props., LLC v. Elmar Assoc., LLC, 51 AD3d 831, 832;  Schuster v. Schweitzer, 203 A.D.2d 552, 553).  Although, in its reply brief, the Estate challenges the denial of its motion, arguments raised for the first time in a reply brief are not properly before this Court (see Metwally v. City of New York, 215 AD3d 820, 825;  Coppola v. Coppola, 291 A.D.2d 477).

We decline the plaintiffs’ request to impose sanctions against the Estate (see 22 NYCRR 130–1.1).

DECISION & ORDER ON MOTION

Motion by the respondents, inter alia, to strike the reply brief on the ground that it improperly raises arguments for the first time in reply.  By decision and order on motion of this Court dated February 10, 2023, that branch of the motion which is to strike the reply brief on the ground that it improperly raises arguments for the first time in reply 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 no papers having been filed in opposition or in relation thereto, and upon the argument of the appeal, it is

ORDERED that the branch of the motion which is to strike the reply brief is granted to the extent that Points II and III of the reply brief are deemed stricken and have not been considered on the appeal, and that branch of the motion is otherwise denied.

DILLON, J.P., BARROS, WOOTEN and VOUTSINAS, JJ., concur.