PARE v. PARE (2023)

DECISION & ORDER

In an action, inter alia, to recover damages for fraud and conversion, the plaintiff Claire Pare appeals from an order of the Supreme Court, Richmond County (Kim Dollard, J.), dated May 12, 2020.  The order, insofar as appealed from, denied that branch of the plaintiff's motion which was for leave to enter a default judgment against the defendants Paul Pare, Marianne Pare–Aalbue, Janice Pare–Shirley, and Donna Coules, and granted those defendants’ cross-motion to compel the plaintiff to accept their late answer to the amended complaint.

Motion by the respondents to dismiss the appeal from the order dated May 12, 2020, on the ground that it has been rendered academic.  By order to show cause dated October 20, 2021, the parties to the appeal were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal from the order dated May 12, 2020, on the ground that the right of direct appeal therefrom terminated upon entry in the above-entitled action of a judgment of the same court dated April 26, 2021.  By decision and order on motion of this Court dated February 18, 2022, the respondents’ motion and the Court's motion were 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 respondents’ motion and the papers filed in opposition thereto, upon the order to show cause and the papers filed in response thereto, and upon the submission of the appeal, it is

ORDERED that the Court's motion to dismiss the appeal is granted;  and it is further,

ORDERED that the respondents’ motion to dismiss the appeal is denied as academic;  and it is further,

ORDERED that 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 dated April 26, 2021 (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 the order are brought up for review and have been considered on the appeal from the judgment (Pare v. Pare, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2023 WL 8609015 [Appellate Division Docket Nos.2021–02983 and 2021–03137;  decided herewith];  see CPLR 5501[a][1];  Matter of Aho, 39 N.Y.2d at 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).

CONNOLLY, J.P., MALTESE, DOWLING and LANDICINO, JJ., concur.