ABASCIANO, FRANK v. DANDREA, PATRICK ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
522
CA 10-02439
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND GREEN, JJ.
FRANK ABASCIANO, PLAINTIFF-RESPONDENT,
V MEMORANDUM AND ORDER
PATRICK DANDREA, DEFENDANT-APPELLANT.
MULDOON & GETZ, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR
DEFENDANT-APPELLANT.
HARRIS, CHESWORTH, O’BRIEN, JOHNSTONE, WELCH & LEONE, LLP, ROCHESTER
(ROBERT S. LENI OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Appeal from an order of the Supreme Court, Monroe County (Kenneth
R. Fisher, J.), entered June 29, 2010. The order, inter alia, denied
the motion of defendant for leave to reargue, granted the cross motion
of plaintiff and directed that the subject property be listed for
sale.
It is hereby ORDERED that said appeal is unanimously dismissed
without costs.
Memorandum: On appeal from an order directing the sale of
partnership property, defendant’s sole contention is that plaintiff
improperly commenced this partnership dissolution action by failing to
file a summons, thereby depriving Supreme Court of jurisdiction. We
conclude that defendant’s jurisdictional challenge is not properly
before us, and we therefore dismiss the appeal.
“The power of an appellate court to review a judgment [or order]
is subject to an appeal being timely taken” (Hecht v City of New York,
60 NY2d 57, 61; see Kline v Town of Guilderland, 289 AD2d 741, 742).
CPLR 5501 (a) (1) provides that “[a]n appeal from a final judgment
brings up for review . . . any non-final judgment or order which
necessarily affects the final judgment” ([emphasis added]; see
Weierheiser v Hermitage Ins. Co., 17 AD3d 1133, 1134). However, an
appeal from a nonfinal order or an intermediate order does not bring
up for review prior nonfinal orders (see Meltzer v Meltzer, 63 AD3d
703; Joseph Davis Indus. Servs. v Sicoli & Massaro, 289 AD2d
984; Baker v Shepard, 276 AD2d 873, 874). For purposes of CPLR 5501
(a) (1), “a final order is one that disposes of all causes of action
between the parties in an action or proceeding and leaves nothing for
further judicial action apart from mere ministerial matters” (Town of
Coeymans v Malphrus, 252 AD2d 874, 875).
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CA 10-02439
Plaintiff commenced this action by order to show cause and
verified complaint in November 2008. Shortly thereafter, defendant
cross-moved for, inter alia, dismissal of the action based upon
plaintiff’s failure to file and serve a summons with the verified
complaint, contending that such failure deprived the court of
jurisdiction. Specifically, defendant contended that “[p]laintiff has
failed to secure the jurisdiction of this Court by properly commencing
an action.” The court issued an order in December 2008 that did not
address defendant’s cross motion, and thus the cross motion was deemed
denied (see Brown v U.S. Vanadium Corp., 198 AD2d 863). Defendant did
not take an appeal from that order.
In response to a motion in March 2009 by plaintiff seeking the
appointment of an accountant pursuant to Partnership Law § 74 to
conduct an accounting “for the purpose of winding up the parties’
dissolved partnership,” defendant cross-moved for, inter alia, “a
specific finding from the Court as to whether it finds that the papers
filed previously are, in fact, a Verified Complaint and if so, find
whether a Summons was filed and served. If the Court so finds, the
cross motion is to dismiss this action for lack of proper jurisdiction
and service.” Defendant sought various forms of relief in the
alternative. In an April 2009 order, the court granted plaintiff’s
motion and denied defendant’s cross motion in its entirety. With
respect to the summons issue, the court ruled that, “insofar as the
Court’s prior [2008 order] did not grant the defendant’s previous
application for dismissal of this action due to the indicated absence
of a summons, said previous application was deemed denied as a matter
of law.” Defendant also did not take an appeal from that order.
Thereafter, the parties both filed several motions and cross
motions concerning the dissolution and winding up of the partnership,
and the court issued at least three further orders. The instant
appeal is from an order entered in June 2010 that, inter alia, denied
defendant’s motion for leave to reargue/renew with respect to a March
2010 order concerning the appointment of the accountant and the
results of the accounting and granted plaintiff’s cross motion,
directing that the property and all materials thereon “be listed for
sale immediately.”
As previously noted, defendant’s sole contention on the appeal
from that order is that this action was not properly commenced and
that the court therefore lacks jurisdiction. Although defendant’s
notice of appeal states that “this appeal is taken from the entirety
of th[e] order [entered June 29, 2010], together with all orders
previously entered” (emphasis added), we have no authority to review
the court’s prior orders, including those denying defendant’s cross
motions to dismiss the action for failure to file a summons. The
order from which the appeal was taken cannot be deemed a “judgment” to
enable us to undertake such a review pursuant to CPLR 5501 (a) (1),
nor does it appear from the record that a final judgment has been
entered (see Bruenn v Pawlowski, 292 AD2d 856).
Further, the order before us on this appeal does not constitute a
“final order” within the meaning of CPLR 5501 (a) (1), i.e., it “did
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CA 10-02439
not dispose of all the factual and legal issues raised in this action”
(Town of Coeymans, 252 AD2d at 875). The complaint contains four
causes of action, for dissolution of the partnership, quantum meruit,
unjust enrichment, and breach of fiduciary duty, while the order
before us on this appeal simply directed that “the subject subdivision
property, with all related building materials located thereon and the
corresponding engineering plans, is . . . to be listed for sale
immediately.”
We thus conclude that the propriety of the orders denying
defendant’s cross motions for dismissal of the action based upon the
failure of plaintiff to file a summons is not properly before us
because defendant failed to take an appeal from those orders (see
Bruenn, 292 AD2d at 857), nor are those orders reviewable on this
appeal from a nonfinal order, which does not bring up for review prior
nonfinal orders (see Meltzer, 63 AD3d 703; Joseph Davis Indus. Servs.,
289 AD2d at 985). Inasmuch as defendant fails to challenge any aspect
of the order on appeal, we dismiss the appeal as abandoned (see Town
of Coeymans, 252 AD2d at 875).
Entered: April 29, 2011 Patricia L. Morgan
Clerk of the Court