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Vitarelle v. Vitarelle

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


September 8, 2009

RICHARD T. VITARELLE, SR., APPELLANT,
v.
RICHARD T. VITARELLE, JR., ETC., RESPONDENT.

In an action to impose a constructive trust upon certain real property, the plaintiff, Richard T. Vitarelle, Sr., appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Suffolk County (Blydenburgh, J.), dated December 5, 2006, as, on consent, awarded possession of the subject premises to the defendant.

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.

A. GAIL PRUDENTI, P.J., HOWARD MILLER, JOSEPH COVELLO and LEONARD B. AUSTIN, JJ.

(Index No. 13361-04)

DECISION & ORDER

ORDERED that the appeal is dismissed, with costs.

The plaintiff consented to the portion of the judgment appealed from which awarded possession of the subject premises to the defendant. Accordingly, the appeal must be dismissed, as no appeal lies from a judgment entered upon the consent of the appealing party (see CPLR 5511; Matter of Shteierman v Shteierman, 29 AD3d 810; Ryan Mgt. Corp. v Cataffo, 278 AD2d 217, 218).

PRUDENTI, P.J., MILLER, COVELLO and AUSTIN, JJ., concur.

20090908

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