Alex M. Ex Rel. Gennaro M. v. City of New York , 148 A.D.3d 533 ( 2017 )

Alex M. v City of New York (2017 NY Slip Op 01982)

Alex M. v City of New York

2017 NY Slip Op 01982

Decided on March 16, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 16, 2017
Tom, J.P., Acosta, Kapnick, Kahn, Gesmer, JJ.

350638/09 3438N 3437

[*1] Alex M., an Infant Over the Age of 14 Years, by His Natural Guardian and Father, Gennaro M., et al., Plaintiffs,

v

City of New York, Defendant. The Law Office of Fred Lichtmacher, P.C., Nonparty Appellant, Irom Wittels Freund Berne & Serra, P.C., Nonparty Respondent.

The Law Office of Fred Lichtmacher, PC, New York (Fred Lichtmacher of counsel), for appellant.

Sclar Adler LLP, New York (Richard W. Berne of counsel), for respondent.

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about December 2, 2015, which granted nonparty respondent's (Irom) motion to confirm a referee's report, dated September 14, 2015, recommending an apportionment of fees between outgoing and incoming counsel, unanimously affirmed, without costs. Appeal from order, dated March 19, 2015, but apparently never entered, unanimously dismissed, without costs, as taken from a nonappealable paper.

The referee's findings are supported by the record (see Lai Ling Cheng v Modansky Leasing Co., 73 NY2d 454, 458 [1989]; Board of Mgrs. of Boro Park Vil.-Phase I Condominium v Boro Park Townhouse Assoc., 284 AD2d 237, 238 [1st Dept 2001]). He considered the relevant factors (Lai Ling Cheng, 73 NY2d at 458; Board of Mgrs., 284 AD2d at 237). As the trier of fact, he was in the best position to determine the issues referred to him (Namer v 152-54-56 W. 15th St. Realty Corp., 108 AD2d 705 [1st Dept 1985]).

The appeal from the March order should be dismissed, because the order was never entered (see Jemzura v Jemzura, 24 AD2d 809 [3d Dept 1965]). Furthermore, nonparty appellant does not object to the reference directed by the order, but rather to the fact that, in a [*2]transcript that was not entered, the court ruled that Irom was not discharged for cause. That ruling is not appealable (Matter of Juan Alejandro R., 221 AD2d 183 [1st Dept 1995]; see also Clemons v Schindler El. Corp., 87 AD3d 452 [1st Dept 2011]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 16, 2017

CLERK