CENTURY SURETY COMPANY v. Zdeno Jadron, et al., respondents.

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CENTURY SURETY COMPANY, appellant, v. ALL IN ONE ROOFING, LLC, defendant, Zdeno Jadron, et al., respondents.

Decided: October 18, 2017

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ. Hurwitz & Fine, P.C., Buffalo, N.Y. (Audrey A. Seeley and Anthony F. DeStefano of counsel), for appellant. Mura & Storm, PLLC, Buffalo, N.Y. (Roy A. Mura and Scott Storm of counsel), for respondent Zdeno Jadron. Lori D. Fishman, Tarrytown, N.Y. (Louis H. Liotti of counsel), for respondents McAlpine Construction Company, Inc., 10 Leonard Street, LLC, and 10 Boulevard, LLC.

Appeal from an amended order of the Supreme Court, Westchester County (William J. Giacomo, J.), entered December 23, 2013. The amended order, insofar as appealed from, denied those branches of the plaintiff's motion which were for leave to enter a default judgment against the defendant All In One Roofing, LLC, declaring that the plaintiff is not obligated to defend or indemnify that defendant in an underlying action, and summary judgment against the defendants Zdeno Jadron, McAlpine Construction Company, Inc., 10 Leonard Street, LLC, and 10 Boulevard, LLC, declaring that the plaintiff is not obligated to defend or indemnify the defendant All In One Roofing, LLC, in the underlying action and dismissing the counterclaims of the defendant Zdeno Jadron for a declaration that it is so obligated.

ORDERED that the appeal is dismissed, without costs or disbursements.

The appeal from so much of the amended order as denied that branch of the plaintiff's motion which was for leave to enter a default judgment against the defendant All In One Roofing, LLC, declaring that the plaintiff is not obligated to defend or indemnify that defendant in the underlying action must be dismissed because the right of direct appeal therefrom terminated with the entry of a judgment dated December 10, 2015 (see Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal from that portion of the amended order are brought up for review and have been considered on the appeal from the judgment dated December 10, 2015 (see CPLR 5501[a][1]; Century Surety. Co. v. All In One Roofing, LLC, ––– AD3d –––– [Appellate Division Docket No. 2016–01297; decided herewith] ).

The appeal from so much of the amended order as denied those branches of the plaintiff's motion which were for summary judgment against the defendants McAlpine Construction Company, Inc., 10 Leonard Street, LLC, and 10 Boulevard, LLC, declaring that the plaintiff is not obligated to defend or indemnify the defendant All In One Roofing, LLC, in the underlying action must be dismissed because the right of direct appeal therefrom terminated with the entry of a judgment dated February 9, 2016 (see Matter of Aho, 39 N.Y.2d at 248). The issues raised on the appeal from that portion of the amended order are brought up for review and have been considered on the appeal from the judgment dated February 9, 2016 (see CPLR 5501[a][1]; Century Surety Co. v. All In One Roofing, LLC, ––– AD3d –––– [Appellate Division Docket No. 2016–01720; decided herewith] ).

The appeal from so much of the amended order as denied that branch of the plaintiff's motion which was for summary judgment against the defendant Zdeno Jadron declaring that the plaintiff is not obligated to defend or indemnify the defendant All In One Roofing, LLC, in the underlying action and dismissing the counterclaims of the defendant Zdeno Jadron for a declaration that it is so obligated must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment dated February 9, 2016 (see Matter of Aho, 39 N.Y.2d at 248). The issues raised on the appeal from that portion of the amended order are brought up for review and have been considered on the appeals from the judgments dated December 10, 2015, and February 9, 2016 (see Century Surety Co. v. All In One Roofing, LLC, ––– AD3d –––– [Appellate Division Docket Nos.2016–01297, 2016–01720; decided herewith] ).

Motion by the respondent Zdeno Jadron to dismiss an appeal from an amended order of the Supreme Court, Westchester County, entered December 23, 2013, on the ground that the right of direct appeal therefrom terminated upon entry of a judgment dated December 10, 2015, in the action. By decision and order on motion of this Court dated March 22, 2016, the motion was 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, and upon the argument of the appeal, it is

ORDERED that the motion to dismiss the appeal is denied as academic.

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