Dune Deck Owners Corp. v. J.J.&P. Associates Corp. , 926 N.Y.S.2d 318 ( 2011 )

In an action, inter alia, to recover damages for breach of a lease, the nonparty J.E Liggett appeals, as limited by his brief, from stated portions of an order of the Supreme Court, Suffolk County (Weber, J.), dated July 28, 2009, which, among other things, granted that branch of the plaintiffs motion which was to impose liability upon him for any deficiency and costs and expenses upon a resale of the subject property at public auction.

Ordered that the appeal from so much of the order as awarded relief to the plaintiff and against the defendant Mylene Liggett, is dismissed, as the appellant is not aggrieved by those portions of the order (see CPLR 5511); and it is further,

Ordered that the order is reversed insofar as reviewed, on the law, and that branch of the plaintiffs motion which was to impose liability against the appellant for any deficiency and costs and expenses upon the resale of the subject property is denied; and it is further,

Ordered that one bill of costs is awarded to the appellant.

With the exception of that portion of the fifth decretal paragraph imposing liability upon the appellant for any deficiency and costs and expenses upon a resale of the subject real property at public auction, the appellant is not aggrieved by the order appealed from, since the remaining portions of the order either award relief only against the defendant Mylene Liggett, directly affect only her interests, or fix the obligations of the referee and anticipated bidders. Accordingly, the appeal from those portions of the order must be dismissed (see CPLR 5511).

Since the appellant, a nonparty to this action, was never served with the order to show causé and supporting papers by which the plaintiff sought relief against him, the Supreme Court had no power to award such relief (see Oakley v Albany Med. Ctr., 39 AD3d 1016, 1017 [2007]; Riverside Capital Advisors, Inc. v First Secured Capital Corp., 28 AD3d 457, 460 [2006]; Blake v LP 591 Ocean Realty, 237 AD2d 554 [1997]). Accordingly, to the extent that the order awards relief against the appellant, it must be reversed.

In view of the foregoing, we have no occasion to reach the parties’ remaining contentions. Mastro, J.P., Belen, Sgroi and Miller, JJ., concur.