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Mangano v. Silver

Supreme Court of New York, Second Department

June 26, 2013

Edward P. Mangano, etc., et al., respondents,
v.
Sheldon Silver, etc., et al., appellants. Index No. 14444/10

Eric T. Schneiderman, Attorney General, New York, N.Y. (Richard Dearing of counsel), for appellants Sheldon Silver, Richard Ravitch, Malcolm A. Smith, John Sampson, State of New York, David A. Paterson, New York State Department of Taxation and Finance, Jamie Woodward, and Thomas DiNapoli.

Nixon Peabody LLP, New York, N.Y. (Frank H. Penski and Abigail T. Reardon of counsel), for appellants Metropolitan Transportation Authority and Jay H. Walder.

John Ciampoli, County Attorney, Mineola, N.Y. (David A. Tauster and Alpa J. Sanghvi of counsel), for respondents Edward P. Mangano and County of Nassau, and Dennis M. Brown, County Attorney, Hauppauge, N.Y. (Drew W. Schirmer of counsel), for respondent County of Suffolk (one brief filed).

Jacobowitz and Gubits, LLP, Walden, N.Y. (Michele L. Babcock of counsel), for respondents Town of Blooming Grove, Town of Crawford, Village of Highland Falls, and Orange County Chamber of Commerce.

Robert F. Meehan, County Attorney, White Plains, N.Y. (Justin R. Adin of counsel), for respondent County of Westchester.

Bartlett, McDonough & Monahan, LLP, White Plains, N.Y. (Craig V. Rizzo and Patricia D'Aliva of counsel), for respondent Town of Smithtown.

MARK C. DILLON, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, SYLVIA HINDS-RADIX, JJ.

DECISION & ORDER

In a consolidated action, inter alia, for a judgment declaring that Tax Law article 23 is unconstitutional, the defendants Sheldon Silver, Richard Ravitch, Malcolm A. Smith, John Sampson, State of New York, David A. Paterson, New York State Department of Taxation and Finance, Jamie Woodward, and Thomas DiNapoli appeal, as limited by their brief, and the defendants Metropolitan Transportation Authority and Jay H. Walder separately appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered July 14, 2011, as denied those branches of their separate motions which were to change the venue of the action from Nassau County to Albany County and granted the cross motion of the plaintiff County of Nassau to retain venue in Nassau County. Motion by the appellants to dismiss the appeals on the ground that the right of direct appeal therefrom terminated upon entry of a judgment entered October 1, 2012. By decision and order on motion of this Court dated December 4, 2012, the motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeals, it is

ORDERED that the motion is granted; and it is further,

ORDERED that the appeals are dismissed, without costs or disbursements.

The appeals from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the final judgment in the action on October 1, 2012 (see Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeals from the order are brought up for review and have been considered on the appeals from the judgment (see CPLR 5501[a][1]).

DILLON, J.P., HALL, LOTT and HINDS-RADIX, JJ., concur.


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