KLEIN v. WILEY (2025)

Supreme Court, Appellate Division, Second Department, New York.

Gregory KLEIN, etc., appellant, v. Edwin WILEY, etc., et al., respondents.

2023-01437

Decided: August 20, 2025

MARK C. DILLON, J.P., PAUL WOOTEN, LOURDES M. VENTURA, DONNA–MARIE E. GOLIA, JJ.

Fabricant Lipman & Frishberg, PLLC, Goshen, NY (Neal D. Frishberg of counsel), for appellant. Law Offices of Michael P. Pasquale, LLC, New York, NY, for respondents.

DECISION & ORDER

In a shareholder's derivative action, inter alia, to recover damages for waste of corporate assets and breach of fiduciary duty, the plaintiff/counterclaim defendant appeals from an order of the Supreme Court, Orange County (Craig Stephen Brown, J.), dated December 9, 2021. The order granted the defendants/counterclaim plaintiffs’ motion for summary judgment dismissing the complaint.

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 on September 27, 2023 (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 (see CPLR 5501[a][1]; Klein v. Wiley, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2025 WL 2405884 [Appellate Division Docket No. 2023–12328; decided herewith]).

DILLON, J.P., WOOTEN, VENTURA and GOLIA, JJ., concur.

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