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Rio v. Rio

Supreme Court of New York, Second Department

October 30, 2013

Frank Rio, appellant,
v.
Lori Lynn Rio, respondent. Index No. 36885/10

Wand, Powers & Goody, LLP, Huntington, N.Y. (Jennifer H. Goody of counsel), for appellant.

Mayer, Ross & Hagan, P.C., Patchogue, N.Y. (Damon A. Hagan of counsel), for respondent.

In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (MacKenzie, J.), dated March 25, 2011, as amended November 21, 2011, as denied that branch of his motion which was for a determination that a postnuptial agreement dated September 22, 2009, was void, and denied, as academic, that branch of his motion which was for a determination that an agreement dated March 11, 2005, was valid.

WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, JEFFREY A. COHEN, JJ.

DECISION & ORDER

Motion by the respondent, inter alia, to dismiss the appeal on the ground that the right of direct appeal from the order terminated upon entry of a judgment entered December 28, 2011. By decision and order on motion of this Court dated May 30, 2012, that branch of the motion which was to dismiss the appeal from the order was held in abeyance and referred to the panel of Justices hearing the appeal 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 argument of the appeal, it is

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

ORDERED that the appeal is dismissed, with costs to the respondent.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see Rio v Rio, ___ A.D.3d ___ [Appellate Division Docket No. 2012-00949; decided herewith]).

MASTRO, J.P., AUSTIN, ROMAN and COHEN, JJ., concur.


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