Opinion
2019-06158 Index 54179/16
09-01-2021
William R. Ziegler, etc., respondent, v. Thomas H. O'Neill, Jr., appellant.
Barclay Damon LLP, Buffalo, NY (Randolph C. Oppenheimer and Sarah A. O'Brien of counsel), for appellant. Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, Lake Success, NY (Seth L. Berman of counsel), for respondent.
Barclay Damon LLP, Buffalo, NY (Randolph C. Oppenheimer and Sarah A. O'Brien of counsel), for appellant.
Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, Lake Success, NY (Seth L. Berman of counsel), for respondent.
MARK C. DILLON, J.P., FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for breach of fiduciary duty, the defendant appeals from an order of the Supreme Court, Westchester County (David F. Everett, J.), dated February 15, 2019. The order, insofar as appealed from, denied the defendant's request to search the record pursuant to CPLR 3212(b) and award him summary judgment dismissing the complaint.
ORDERED that the appeal is dismissed, with costs.
The defendant's appeal from so much of the order as denied his request, made in his memorandum of law in opposition to the plaintiff's motion for summary judgment, that the Supreme Court search the record pursuant to CPLR 3212(b) and award him summary judgment dismissing the complaint is dismissed, as no appeal lies as of right from an order which does not determine a motion made on notice (see CPLR 5701[a][2]), and we decline to grant leave to appeal (see CPLR 5701[c]; Vitiello v Merwin, 130 A.D.3d 609, 610; Peterson v City of New York, 120 A.D.3d 1328, 1329; Keyspan Gas E. Corp. v Supervisor of Town of N. Hempstead, 115 A.D.3d 810, 811).
DILLON, J.P., CONNOLLY, IANNACCI and CHRISTOPHER, JJ., concur.