Aebly v. Lally

Aebly v Lally (2016 NY Slip Op 04161)

Aebly v Lally

2016 NY Slip Op 04161

Decided on June 1, 2016

Appellate Division, Second 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 June 1, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
LEONARD B. AUSTIN
SHERI S. ROMAN
JEFFREY A. COHEN, JJ.

2015-02791
2015-02792
(Index No. 202114/08)

[*1]Richard E. Aebly, plaintiff-respondent,

v

Regan Lally, appellant; Bernice K. Leber, nonparty-respondent.

Regan Lally, Locust Valley, NY, appellant pro se.

Richard E. Aebly, Glen Head, NY, plaintiff-respondent pro se.

Arent Fox LLP, New York, NY (Bernice K. Leber pro se of counsel and Gerald Goldstein of counsel), for nonparty-respondent.

DECISION & ORDER

Appeals from (1) an order of the Supreme Court, Nassau County (Leonard D. Steinman, J.), dated January 31, 2014, and (2) an order of that court dated October 10, 2014. The order dated January 31, 2014, insofar as appealed from, denied that branch of the defendant's motion which was to remove the court-appointed receiver. The order dated October 10, 2014, approved the receiver's retention of Gerald Goldstein as her counsel.

ORDERED that the appeal from the order dated October 10, 2014, is dismissed, as no appeal lies as of right from an order that does not decide a motion made on notice (see CPLR 5701[a][2]), and we decline to grant leave to appeal (see CPLR 5701[c]); and it is further,

ORDERED that the order dated January 31, 2014, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff and the nonparty- respondent.

Under the circumstances of this case, the defendant failed to establish sufficient grounds for the removal of the receiver appointed by the court by order dated October 13, 2011. Accordingly, the Supreme Court did not improvidently exercise its discretion in denying the defendant's motion seeking the removal of the temporary receiver (see CPLR 6405; Bank of Tokyo Trust Co. v Urban Food Malls, 229 AD2d 14, 29).

RIVERA, J.P., AUSTIN, ROMAN and COHEN, JJ., concur.

2015-02791 DECISION & ORDER ON MOTION

2015-02792

Richard E. Aebly, plaintiff-respondent, v Regan Lally,

appellant; Bernice K. Leber, nonparty-respondent.

(Index No. 202114/08)

Motion by the appellant on appeals from two orders of the Supreme Court, Nassau County, dated January 31, 2014, and October 10, 2014, respectively, inter alia, to strike stated portions of the nonparty-respondent's appendix on the ground that they contain matter dehors the record. By decision and order on motion of this Court dated July 31, 2015, that branch of the motion was held in abeyance and referred to the panel of Justices hearing the appeals 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 appeals, it is

ORDERED that the branch of the motion which is to strike stated portions of the nonparty-respondent's appendix is denied.

RIVERA, J.P., AUSTIN, ROMAN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court