Opinion
No. 244 CA 23-00089
05-03-2024
IN THE MATTER OF BUFFALO CITY CEMETERY, INC., ALSO KNOWN AS FOREST LAWN, PETITIONER-RESPONDENT, v. 215 LOT OWNERS AND/OR NEXT-OF-KIN FOR DECEDENTS INTERRRED AT ST. MATTHEW'S CEMETERY, RESPONDENTS-APPELLANTS.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR RESPONDENTS-APPELLANTS. GOLDBERG SEGALLA LLP, BUFFALO (MEGHAN M. BROWN OF COUNSEL), FOR PETITIONER-RESPONDENT.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR RESPONDENTS-APPELLANTS.
GOLDBERG SEGALLA LLP, BUFFALO (MEGHAN M. BROWN OF COUNSEL), FOR PETITIONER-RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, OGDEN, NOWAK, AND DELCONTE, JJ.
Appeal from a decision of the Supreme Court, Erie County (Dennis E. Ward, J.), entered November 30, 2022. The decision granted the petition for approval of the relocation of graves.
It is hereby ORDERED that said appeal is unanimously dismissed without costs.
Memorandum: In this proceeding pursuant to Not-for-Profit Corporation Law § 1510 (e), respondents appeal from a decision granting petitioner's request for a judgment approving, nunc pro tunc, the relocation of 215 graves within its cemetery in West Seneca. It is well settled, however, that "no appeal lies from a decision" (Gunn v Palmieri, 86 N.Y.2d 830, 830 [1995]; see CPLR 5512 [a]; Garcia v Town of Tonawanda, 194 A.D.3d 1479, 1479-1480 [4th Dept 2021]; Kuhn v Kuhn, 129 A.D.2d 967, 967 [4th Dept 1987]). Although respondents ask us to treat the decision as a judgment and thereby entertain their appeal, we lack discretion to do so inasmuch as the decision from which they appeal lacks the essential requirements of a judgment (see generally Nicol v Nicol, 179 A.D.3d 1472, 1473 [4th Dept 2020]). We therefore dismiss the appeal without addressing the merits of respondents' contentions.