Opinion
782 CA 23-00306
11-17-2023
Anne MACKIEWICZ, as Executor of the Estate of Paul O. Jessen, Deceased, Plaintiff-Respondent, v. AUTUMN VIEW HEALTH CARE FACILITY, Autumn View Health Care Facility, LLC, the McGuire Group, Inc., Vestra SPVI, LLC, and Vestra SPV2, LLC, Defendants-Appellants.
HARRIS BEACH PLLC, NEW YORK CITY (BRIAN D. GINSBERG OF COUNSEL), FOR DEFENDANTS-APPELLANTS. BROWN CHIARI, LLP, BUFFALO (ANDREA N. CONJERTI OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
HARRIS BEACH PLLC, NEW YORK CITY (BRIAN D. GINSBERG OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
BROWN CHIARI, LLP, BUFFALO (ANDREA N. CONJERTI OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, MONTOUR, GREENWOOD, AND DELCONTE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that said appeal is unanimously dismissed without costs.
Memorandum: As limited by their brief, defendants appeal from an order that, inter alia, denied their motion insofar as it sought to dismiss the complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7). We conclude that the appeal must be dismissed inasmuch as that order was materially amended by a subsequent order (see Matter of Eric D. [appeal No. 1], 162 A.D.2d 1051, 1051, 559 N.Y.S.2d 156 [4th Dept. 1990] ), and we decline to exercise our discretion to treat the notice of appeal as one taken from the subsequent order (see Matter of Justeen T. , 17 A.D.3d 1148, 1148, 793 N.Y.S.2d 844 [4th Dept. 2005] ).