Opinion
898 CA 19–00388
10-04-2019
Martin S. AUER, Plaintiff, and Lawrence SLOANE, Plaintiff–Appellant, v. John S. DYSON, George L. Ingalls, Richard M. Flynn, Frederick R. Clark, Robert I. Millonzi, Constituting Power Authority of the State of New York, Defendants–respondents, et al., Defendant.
AARON M. ZIMMERMAN, SYRACUSE, AND GARY LAVINE, FOR PLAINTIFF–APPELLANT. HOLLAND & KNIGHT, LLP, NEW YORK CITY (KATHERINE A. SKEELE OF COUNSEL), PUGH, JONES & JOHNSON, P.C., AND MICHAEL MCCARTHY, ASSISTANT GENERAL COUNSEL, NEW YORK POWER AUTHORITY, WHITE PLAINS, FOR DEFENDANTS–RESPONDENTS.
AARON M. ZIMMERMAN, SYRACUSE, AND GARY LAVINE, FOR PLAINTIFF–APPELLANT.
HOLLAND & KNIGHT, LLP, NEW YORK CITY (KATHERINE A. SKEELE OF COUNSEL), PUGH, JONES & JOHNSON, P.C., AND MICHAEL MCCARTHY, ASSISTANT GENERAL COUNSEL, NEW YORK POWER AUTHORITY, WHITE PLAINS, FOR DEFENDANTS–RESPONDENTS.
PRESENT: WHALEN, P.J., SMITH, CENTRA, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that said appeal is unanimously dismissed without costs. Memorandum: Using an index number assigned to a declaratory judgment action that settled in the 1980s, Lawrence Sloane (plaintiff) moved by order to show cause in 2018 to, inter alia, "enforce" the various determinations made in the prior action. Plaintiff now appeals from an order that, inter alia, granted the motion of defendant Power Authority of the State of New York to change venue.
We dismiss the appeal because plaintiff charted an improper procedural course under these circumstances. Although a party is not generally required to commence a separate action to enforce a prior declaratory judgment, plaintiff's current motion raises issues "wholly separate and distinct" from those raised in the prior action and thus cannot be treated as a proper application to enforce the determinations rendered in such prior action ( Matter of Korn v. Gulotta , 186 A.D.2d 195, 197–198, 587 N.Y.S.2d 960 [2d Dept. 1992], lv dismissed 81 N.Y.2d 759, 594 N.Y.S.2d 719, 610 N.E.2d 392 [1992], rearg. denied 81 N.Y.2d 835, 595 N.Y.S.2d 398, 611 N.E.2d 299 [1993] ). In other words, plaintiff "should [have] proceed[ed] by a new plenary action" rather than by "motion in an action which has been terminated" ( County of Erie v. Axelrod , 80 A.D.2d 701, 702, 436 N.Y.S.2d 461 [3d Dept. 1981], lv dismissed 53 N.Y.2d 604, 797, 439 N.Y.S.2d 1028, 422 N.E.2d 583 [1981] ), and it is undisputed that plaintiff did not commence a new plenary action. "Without an underlying action the order putatively on appeal does not constitute an appealable paper," and the appeal must therefore be dismissed ( Matter of Town of Cicero v. Lakeshore Estates, LLC , 152 A.D.3d 1168, 1169, 60 N.Y.S.3d 730 [4th Dept. 2017] ).