Opinion
03-16-2017
ALEX M., an Infant Over the Age of Years, by His Natural Guardian and Father, Gennaro M., et al., Plaintiffs, v. CITY OF NEW YORK, Defendant. The Law Office of Fred Lichtmacher, P.C., Nonparty Appellant, Irom Wittels Freund Berne & Serra, P.C., Nonparty Respondent.
The Law Office of Fred Lichtmacher, PC, New York (Fred Lichtmacher of counsel), for appellant. Sclar Adler LLP, New York (Richard W. Berne of counsel), for respondent.
The Law Office of Fred Lichtmacher, PC, New York (Fred Lichtmacher of counsel), for appellant.
Sclar Adler LLP, New York (Richard W. Berne of counsel), for respondent.
Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about December 2, 2015, which granted nonparty respondent's (Irom) motion to confirm a referee's report, dated September 14, 2015, recommending an apportionment of fees between outgoing and incoming counsel, unanimously affirmed, without costs. Appeal from order, dated March 19, 2015, but apparently never entered, unanimously dismissed, without costs, as taken from a nonappealable paper.
The referee's findings are supported by the record (see Lai Ling Cheng v. Modansky Leasing Co., 73 N.Y.2d 454, 458, 541 N.Y.S.2d 742, 539 N.E.2d 570 [1989] ; Board of Mgrs. of Boro Park Vil.-Phase I Condominium v. Boro Park Townhouse Assoc., 284 A.D.2d 237, 238, 726 N.Y.S.2d 606 [1st Dept.2001] ). He considered the relevant factors (Lai Ling Cheng, 73 N.Y.2d at 458, 541 N.Y.S.2d 742, 539 N.E.2d 570 ; Board of Mgrs., 284 A.D.2d at 237, 726 N.Y.S.2d 606 ). As the trier of fact, he was in the best position to determine the issues referred to him (Namer v. 152–54–56 W. 15th St. Realty Corp., 108 A.D.2d 705, 485 N.Y.S.2d 1013 [1st Dept.1985] ).
The appeal from the March order should be dismissed, because the order was never entered (see Jemzura v. Jemzura, 24 A.D.2d 809, 263 N.Y.S.2d 737 [3d Dept.1965] ). Furthermore, nonparty appellant does not object to the reference directed by the order, but rather to the fact that, in a transcript that was not entered, the court ruled that Irom was not discharged for cause. That ruling is not appealable (Matter of Juan Alejandro R., 221 A.D.2d 183, 633 N.Y.S.2d 159 [1st Dept.1995] ; see also Clemons v. Schindler El. Corp., 87 A.D.3d 452, 928 N.Y.S.2d 39 [1st Dept.2011] ).
TOM, J.P., ACOSTA, KAPNICK, KAHN, GESMER, JJ., concur.