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Salomon v. Angsten

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


June 23, 2009

STANLEY SALOMON, EXECUTOR OF THE ESTATE OF CARL LEVINE, PLAINTIFF-APPELLANT,
v.
LAURETTE ANGSTEN, ET AL., DEFENDANTS-RESPONDENTS. DAVID FINK, NONPARTY APPELLANT.

Appeal from order, Supreme Court, New York County (Charles E. Ramos, J.), entered July 17, 2007, upon the transcript of the proceedings conducted on May 16, 2007, which, insofar as appealed from, reaffirmed the court's March 22, 2007 decision that the entire action was brought in bad faith and that defendant is entitled to reimbursement of all of its attorneys' fees incurred in the action, unanimously dismissed, without costs. Appeal from judgment, same court and Justice, entered January 3, 2008, in favor of defendant and against nonparty Fink, plaintiff's attorney, for legal fees in the amount of $409,296.17, inclusive of interest, costs and disbursement, unanimously dismissed, without costs. Appeal from order, same court and Justice, entered December 24, 2007, which, upon nonparty Fink's default in appearing at the inquest to determine the amount of his liability for the costs and attorneys' fees incurred by defendant in this action, directed that judgment be entered in favor of defendant and against nonparty Fink in the principal amount of $381,592, together with interest from March 22, 2007, unanimously dismissed, without costs. Appeals from orders denying nonparty Fink's motions to vacate his default in appearing at the inquest unanimously dismissed, without costs.

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.

Gonzalez, P.J., Sweeny, Buckley, Renwick, Freedman, JJ.

604063/00

Plaintiff's appeal from the order entered July 17, 2007 is dismissed as the issue raised therein was previously raised in a prior appeal that plaintiff took from another order, which appeal was dismissed for failure to prosecute (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750 [1999]; Inwood Tower v Fireman's Fund Ins. Co. 290 AD2d 252 [2002]). Nonparty Fink's appeals from the judgment entered January 3, 2008 and its underlying order entered December 24, 2007 are dismissed as no appeal lies from a default judgment, or its underlying order, entered upon an uncontested inquest (see Bank of Montreal v Predovan, 71 NY2d 844 [1988]). Nonparty Fink's appeals from the orders denying his motions to vacate his default were previously dismissed by order of this Court entered December 16, 2008 (2008 NY Slip Op 92069[U]).

M-198 - Stanley Salomon v Laurette Angsten

Motion seeking to dismiss appeals and for other related relief granted.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090623

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