GUTMAN v. Zalman Klein, appellant-respondent. (2014)

In an action, inter alia, to recover damages for breach of fiduciary duty and for an accounting, the defendant Zalman Klein appeals from (1) so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated March 28, 2012, as declined to declare the percentage of his interests in certain specified corporate entities and instead required him to prove, at a hearing, the percentage of his interests in those entities, and (2) so much of a judgment of the same court, also dated March 28, 2012, as, upon the order, failed to declare the percentage of his interests in the specified entities and instead referred the issue for a hearing, and the plaintiff cross-appeals, as limited by his brief, from (1) stated portions of the same order which, inter alia, denied that branch of his motion which was to dismiss the defendants' counterclaims as barred by the doctrine of res judicata, and (2) stated portions of the same judgment which, upon the order, and upon a decision and order of this Court dated January 17, 2012, inter alia, awarded the defendant Zalman Klein judgment on the defendants' counterclaims.

ORDERED that the appeal and cross appeal from the order are dismissed, without costs or disbursements; and it is further,

ORDERED that the appeal from the judgment is dismissed as academic, without costs or disbursements, in light of the vacatur of the portions of the judgment appealed from in an order dated December 7, 2012, and our affirmance of that order insofar as appealed from in a companion appeal (see Gutman v. A to Z Holding Corp., ––– AD3d –––– [Appellate Division Docket No. 2013–01454, decided herewith] ); and it is further,

ORDERED that the judgment is affirmed insofar as cross-appealed from, without costs or disbursements.

The appeal and cross appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal and cross appeal from the order are brought up for review and have been considered on the companion appeals (see CPLR 5501[a][1]; Gutman v. A to Z Holding Corp., ––– AD3d –––– [Appellate Division Docket No. 2013–01454, decided herewith]; Klein v. Gutman, ––– AD3d –––– [Appellate Division Docket No. 2013–00862, decided herewith] ).

Contrary to the plaintiff's contention, that branch of his motion which was to dismiss the defendants' counterclaims as barred by the doctrine of res judicata was properly denied (see Klein v. Gutman, ––– AD3d –––– [Appellate Division Docket No. 2013–00862, decided herewith] ).