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 June 21, 2019.  The order denied the defendant's motion pursuant to Domestic Relations Law § 237(a) for additional interim counsel and expert fees without prejudice to the defendant seeking a final award of counsel and expert fees upon final settlement or judgment of the action.

Motion by the plaintiff, inter alia, to dismiss the appeal on the ground that the right of direct appeal from the order terminated upon entry in the above-entitled action of an amended judgment of the same court dated December 23, 2021.  By order to show cause dated May 26, 2023, 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Court why an order should or should not be made and entered dismissing the appeal on the ground that the order has been superseded by an order of the Supreme Court, Westchester County, dated March 28, 2022.  By decision and order on motion of this Court dated February 9, 2024, the order to show cause and that branch of the motion which is to dismiss the appeal 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 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 branch of the motion which is to dismiss the appeal is granted;  and it is further,

ORDERED that this Court's 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 dated June 21, 2019, must be dismissed because the right of direct appeal therefrom 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).  That order is not reviewable on the cross-appeal from the amended judgment of divorce under CPLR 5501 because, if reversed or modified, it would not necessarily affect the amended judgment of divorce (see Bottini v. Bottini, 164 A.D.3d 555, 556, 78 N.Y.S.3d 684 ).

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