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Robertson v. United Equities

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT


April 21, 2009

ROBERT ROBERTSON, ETC., ET AL., APPELLANTS,
v.
UNITED EQUITIES, INC., RESPONDENT, ET AL., DEFENDANTS.

In an action, inter alia, to set aside a deed conveying certain real property, the plaintiffs appeal from (1) an order of the Supreme Court, Kings County (Schack, J.), dated August 31, 2007, and (2) an amended order of the same court dated September 25, 2007, which directed a hearing to aid in the disposition of the motion of the defendant United Equities, Inc., which was for an award of an attorney's fee and to impose a sanction against the plaintiffs and/or their attorney, pursuant to 22 NYCRR 130-1.1, and, sua sponte, directed dismissal of the complaint insofar as asserted against the defendant United Equities, Inc.

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.

PETER B. SKELOS, J.P., STEVEN W. FISHER, HOWARD MILLER and RANDALL T. ENG, JJ.

(Index No. 35178/04)

DECISION & ORDER

ORDERED that the appeals are dismissed, with one bill of costs payable to the respondent.

The appeal from the order dated August 31, 2007, must be dismissed, as that order was superseded by the amended order dated September 25, 2007 (see Ricuarte v 45th St. Bake Corp., 35 AD3d 579, 579).

The appeal from so much of the amended order as directed a hearing to aid in the disposition of the motion of the defendant United Equities, Inc., which was for an award of an attorney's fee and to impose a sanction against the plaintiffs and/or their attorney, pursuant to 22 NYCRR 130-1.1, is not appealable as of right, as it did not determine that motion and did not affect a substantial right (see CPLR 5701[a][2][v], [c]; Youngquist v Youngquist, 44 AD3d 1034, 1035), and leave to appeal has not been granted from that portion of the amended order.

Furthermore, the appeal from so much of the amended order as, sua sponte, directed dismissal of the complaint insofar as asserted against the defendant United Equities, Inc., is not appealable as of right, as it did not decide a motion made upon notice (see CPLR 5701[a][2], [c]; Consolidated Resources, LLC v 21-220-230 Owner's Corp., 59 AD3d 579), and leave to appeal has not been granted from that portion of the amended order.

SKELOS, J.P., FISHER, MILLER and ENG, JJ., concur.

20090421

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