TORKIN v. SUSAC (2025)

DECISION & ORDER

In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Westchester County (David F. Everett, J.), dated April 5, 2019.  The order denied, without a hearing, that branch of the defendant's motion which was to set aside an agreement of the parties dated December 13, 2016.

Motion by the plaintiff to dismiss the appeal from the order as superseded by an amended judgment of the same court dated December 23, 2021.  Cross-motion by the defendant, in effect, to deem the issues raised in the appeal from the order brought up for review on the appeal from the amended judgment.  By decision and order on motion of this Court dated February 9, 2024, the motion and cross-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 motion and the cross-motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is

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

ORDERED that the appeal is dismissed, without costs or disbursements;  and it is further,

ORDERED that the cross-motion is denied as unnecessary (see CPLR 5501[a][1]).

The appeal must be dismissed because the right of direct appeal from the order terminated with the entry of an amended judgment of divorce 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 the order are brought up for review and have been considered on the cross-appeal from the amended judgment of divorce (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;  Torkin v. Susac, ––– AD3d –––– [Appellate Division Docket No. 2022–00180;  decided herewith]).

CHAMBERS, J.P., BRATHWAITE NELSON, VOUTSINAS and LOVE, JJ., concur.