LLC v. <<

Reset A A Font size: Print

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

Rupert Singh, plaintiff-appellant-respondent, v Lincoln Management, LLC, et al., defendants third-party plaintiffs-appellants-respondents;  Allen Daniel Framing Corp., third-party defendant-respondent.

2010–06787 2010–09770 (Index No. 24511/07)

Decided: September 13, 2011

JOSEPH COVELLO, J.P. CHERYL E. CHAMBERS PLUMMER E. LOTT ROBERT J. MILLER, JJ. Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y. (Marcia K. Raicus of counsel), for defendants third-party plaintiffs-appellants-respondents. Gregory J. Allen (Linda A. Stark, New York, N.Y., of counsel), for third-party defendant-respondent.

Argued—May 5, 2011

DECISION & ORDER

In an action to recover damages for personal injuries, (1) the plaintiff appeals from an order of the Supreme Court, Queens County (Taylor, J.), entered May 27, 2010, and the defendants third-party plaintiffs separately appeal from so much of the same order as denied, as academic, the third-party defendant's renewed motion for summary judgment dismissing the third-party complaint, and (2) the defendants third-party plaintiffs also appeal from a judgment of the same court entered August 16, 2010, which, upon the order, dismissed the complaint.

ORDERED that the appeals are dismissed, without costs or disbursements.

The appeal by the plaintiff from the order must be dismissed for failure to perfect the same in accordance with the rules of this Court (see 22 NYCRR 670.8[c], [e] ).   The appeal by the defendants third-party plaintiffs from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248).   The issues raised on the appeal by the defendants third-party plaintiffs from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).

However, the appeal by the defendants third-party plaintiffs from the judgment must be dismissed, as they are not aggrieved thereby.   They received all the relief sought by them on their cross motion for summary judgment dismissing the complaint, the third-party defendant's renewed motion for summary judgment dismissing the third-party complaint was denied as academic, and the third-party complaint has not been dismissed by the Supreme Court (see CPLR 5511).   That the order brought up for review on the appeal from the judgment may contain language or reasoning which the defendants third-party plaintiffs deem adverse to their interests does not furnish them with a basis for taking an appeal (see Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 N.Y.2d 465, 472–473).

COVELLO, J.P., CHAMBERS, LOTT and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

Copied to clipboard