CPLR § 5520 Omissions; appeal by improper method
CPLR § 5512 Appealable Paper; entry of order made out of court
Republic Mtge. Ins. Co. v Countrywide Fin. Corp., 2011 NY Slip Op 06292 (1st Dept., 2011)
Initially, to reach the merits of plaintiffs' appeal, we exercise our discretionary authority, pursuant to CPLR 5520(c), to deem the inaccurate notice of appeal as valid to correct the procedural problem created here by plaintiffs' appeal from the order and not the judgment (Robertson v Greenstein, 308 AD2d 381 [2003], lv dismissed 2 NY3d 759 [2004]).
Clemons v Schindler El. Corp., 2011 NY Slip Op 06205 (1st Dept., 2011)
Purported appeals from decisions, Supreme Court, New York County (Judith J. Gische, J. and Ira Gammerman, J.H.O.), filed January 12, 2010, which, respectively, denied a motion to strike this matter from the trial calendar, and denied an application to adjourn the proceedings and directed dismissal of the complaint with prejudice for failure to prosecute, unanimously dismissed, with costs, as taken from nonappealable papers.
In December 2008, trial of this matter was adjourned to January 7, 2009 to accommodate the vacation plans of plaintiff's trial counsel. Several days later, plaintiff brought an order to show cause to remove the case from the trial calendar in order to permit amendment of her expert's report to assert an additional basis of liability. The motion was heard by Supreme Court (Judith J. Gische, J.) and denied in an order entered January 14, 2009. The unsigned transcript of the proceedings, reciting that it "constitutes the decision and order of the Court," was not filed until January 12, 2010.
After appearing before Justice Gische, the parties proceeded to the trial part, where plaintiff sought adjournment on the ground that trial counsel was on trial in another matter. After JHO Gammerman indicated his acquiescence to the extent of adjourning trial for a few days, plaintiff's counsel requested that the court go off the record. When the proceedings resumed, JHO Gammerman ruled that it was dismissing the matter for failure to prosecute, stating that "it is a dismissal with prejudice, and the Clerk is directed to enter appropriate judgment." The transcript of these proceedings, likewise unsigned, was also not entered until January 12, 2010.
The ruling sought to be reviewed on this appeal is indeterminate. The notice of appeal dated January 13, 2010 recites that the appeal is taken "from the order of [Supreme] Court duly entered in the office of the Clerk on January 12, 2010." While the notice fails to specify the individual judge or judicial hearing officer, plaintiff's pre-argument statement (McKinney's NY Rules of Court [22 NYCRR] § 600.17[a]) identifies the ruling appealed from as that of Justice Gische. Finally, plaintiff's brief designates the question to be decided as whether the trial court committed an abuse of discretion in denying the motion to mark the matter off the trial calendar, leading to an order dismissing the case, and concludes that "the orders [sic] appealed from should be reversed."
Although the transcript of proceedings before JHO Gammerman indicates that, upon signing, it may be presented to the Clerk for entry of judgment, it is not signed and no subsequent proceedings are reflected in the record. Particularly, there is no indication that judgment was ever entered.
Neither of the decisions filed on January 12, 2010 constitutes an appealable paper (CPLR 5512[a]), and this appeal must be dismissed for lack of jurisdiction (Matter of Grosso v Slade, 179 AD2d 585, 586 [1992]). The ruling by Justice Gische was reduced to a short-form order duly entered on January 14, 2009 (CPLR 2219[a]) but not appealed from. The JHO's decision was never presented for signature by a Supreme Court Justice, and there is no record of any judgment having been entered thereon from which an appeal could be taken.
Singh v Lincoln Mgt., LLC, 2011 NY Slip Op 06484 (2nd Dept., 2011)
The appeal by the plaintiff from the order must be dismissed for failure to perfect the same in accordance with the rules of this Court (see 22 NYCRR 670.8[c], [e]). The appeal by the defendants third-party plaintiffs from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal by the defendants third-party plaintiffs from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).
However, the appeal by the defendants third-party plaintiffs from the judgment must be dismissed, as they are not aggrieved thereby. They received all the relief sought by them on their cross motion for summary judgment dismissing the complaint, the third-party defendant's renewed motion for summary judgment dismissing the third-party complaint was denied as academic, and the third-party complaint has not been dismissed by the Supreme Court (see CPLR 5511). That the order brought up for review on the appeal from the judgment may contain language or reasoning which the defendants third-party plaintiffs deem adverse to their interests does not furnish them with a basis for taking an appeal (see Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465, 472-473).
Deller v Mercy Med. Ctr., 2011 NY Slip Op 06365 (2nd Dept., 2011)
As a general rule, we do not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for lack of prosecution, although the Court has the inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, 38 NY2d 350). The plaintiff appealed from a judgment entered January 12, 2009, which upon, inter alia, an order of the Supreme Court, Nassau County, entered October 4, 2005, denying the plaintiff's motion to restore the action to the trial calendar, dismissed the complaint pursuant to CPLR 3404. That appeal was dismissed by decision and order on motion of this Court dated August 4, 2010, for failure to perfect in accordance with the rules of this Court, and that dismissal constituted an adjudication on the merits with respect to all issues which could have been reviewed on that appeal (see Bray v Cox, 38 NY2d at 355). Under the circumstances of this case, we decline to exercise our discretion to determine the merits of the instant appeal from the amended judgment, which raises the same issues as could have been raised on the prior appeal (see Bray v Cox, 38 NY2d 350; Graziano v Graziano, 66 AD3d 835; Blue Chip Mtge. Corp. v Stumpf, 50 AD3d 936; Matter of Talt v Murphy, 35 AD3d 486; Hepner v New York City Tr. Auth., 27 AD3d 418).
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