425 East 26th Street Owners Corp. v. Beaton

425 E. 26th St. Owners Corp. v Beaton (2015 NY Slip Op 04091)

425 E. 26th St. Owners Corp. v Beaton

2015 NY Slip Op 04091

Decided on May 13, 2015

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 May 13, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
SHERI S. ROMAN
SANDRA L. SGROI
COLLEEN D. DUFFY, JJ.

2013-05159
(Index No. 20291/05)

[*1]425 East 26th Street Owners Corp., respondent,

v

Laurel Beaton, appellant, et al., defendants.

G. Wesley Simpson, P.C., Brooklyn, N.Y., for appellant.

Rosenberg & Estis, P.C., New York, N.Y. (Deborah Riegel and Brett B. Theis of counsel), for respondent.

In an action to foreclose a lien upon a cooperative apartment unit for the nonpayment of common charges, the defendant Laurel Beaton appeals from an order of the Supreme Court, Kings County (Kurtz, J.), dated March 22, 2013, which, inter alia, granted the plaintiff's motion to confirm a referee's report dated November 27, 2012, which computed attorney's fees and other damages owed to the plaintiff in the principal sum of $97,447.28.

Motion by the plaintiff, inter alia, to dismiss the appeal from the order dated March 22, 2013, on the ground that the right of direct appeal therefrom terminated upon entry of a judgment of the same court dated March 22, 2013. By decision and order on motion of this Court dated April 30, 2014, that branch of the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

DECISION & ORDER

Separate motion by the plaintiff, inter alia, to dismiss the appeal from the order dated March 22, 2013, on the ground that it has been rendered academic. By decision and order on motion of this Court dated July 15, 2014, that branch of 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 motions and the papers filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that the branch of the motion which is to dismiss the appeal from the order on the ground that the right of direct appeal therefrom terminated upon entry of a judgment of the same court dated March 22, 2013, is granted; and it is further,

ORDERED that the branch of the separate motion which is to dismiss the appeal from the order on the ground that it has been rendered academic is denied as academic; and it is further,

ORDERED that the appeal is dismissed, with costs.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment (see Matter of Aho, 39 NY2d 241, 248). The [*2]issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]; 425 E. 26th St. Owners Corp. v Beaton, _____ AD3d _____ [Appellate Division Docket Nos. 2013-09690, 2013-09691; decided herewith]).

RIVERA, J.P., ROMAN, SGROI and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court