Opinion
February 6, 1995
Appeal from the Supreme Court, Westchester County (Donovan, J.).
Ordered that on the court's own motion, the appellant's notice of appeal is treated as an application for leave to appeal from so much of the order dated November 7, 1990, as directed a hearing, and leave to appeal is granted; and it is further,
Ordered that the appeal from the decision is dismissed; and it is further,
Ordered that the judgment and the order are affirmed; and it is further,
Ordered that the respondent is awarded one bill of costs.
This is a foreclosure action in which the defendant Ravi Batra has asserted several counterclaims. On December 13, 1988, the plaintiff moved for an order granting "summary judgment on the summons and complaint and directing entry of a Judgment of Foreclosure, striking defendant Batra's answer [and] severing the counter-claims set forth in defendant Batra's answer for separate trial". In support of this motion, counsel submitted an affidavit in which he requested a severance of the counterclaims pursuant to CPLR 3212 (e). Neither the prayer for relief contained in the notice of motion nor that contained in the "wherefore" clause of counsel's affidavit sought dismissal of the counterclaims on the merits.
In a decision entered March 23, 1989, the Supreme Court directed the plaintiff to submit an order within 10 days granting not only the relief sought by the plaintiff, but also a provision "striking the * * * counterclaims" of the defendant Batra. However, the order which was ultimately signed by the court, dated April 10, 1989, did not contain a provision striking Batra's answer or dismissing his counterclaims. That order, which was not appealed from, contained but one decretal provision, i.e., a directive appointing a Referee.
On December 20, 1989, the Supreme Court issued a judgment of foreclosure and sale directing that the mortgaged premises be sold, and granting related relief. This judgment, like the prior order, is devoid of any provision disposing of the counterclaims. On November 7, 1990, the Supreme Court entered an order confirming the Referee's report and directing a hearing. Ravi Batra now appeals from the decision entered March 23, 1989, the judgment dated December 20, 1989, and the order entered November 7, 1990.
The appeal from the decision must be dismissed as no appeal lies from a decision (e.g., Galleria Assocs. v. Stevens, 208 A.D.2d 590; Schicchi v. Green Constr. Corp., 100 A.D.2d 509; People ex rel. Breedan v. Zelker, 41 A.D.2d 669; Haftel v. Appleton, 21 A.D.2d 651).
If the Supreme Court's decision which directed that the counterclaims be stricken had been reduced to an order, such an order would have been reviewable on appeal from the judgment (see, CPLR 5501 [a] [1]) on the theory that it constituted an exercise, albeit an improper one, of the court's power to search the record and grant summary judgment pursuant to CPLR 3212 (b) (see, White v. La France, 203 A.D.2d 765; Conroy v. Swartout, 135 A.D.2d 945), or an instance of the court granting sua sponte relief (see, CPLR 5701 [a] [2]; [c]; Sena v. Nationwide Mut. Fire Ins. Co., 198 A.D.2d 345; Matter of Baby Girl, 189 A.D.2d 763; Sheik v. Sheik, 187 A.D.2d 572; Modica v Zergebel, 160 A.D.2d 689). However, the decision striking the appellant's counterclaims was not reduced to an order or embodied as a decretal paragraph of the judgment. Therefore, the counterclaims have not been properly disposed of and will not be until the Supreme Court grants an appropriate motion to resettle the April 10, 1989, order (see, e.g., Peron Rest. v. Young Rubicam, 179 A.D.2d 469; Lebolt v. Lebolt, 166 A.D.2d 420; Pizzuto v. Pizzuto, 162 A.D.2d 443; Pivnik v. Fraley Realty Corp., 157 A.D.2d 466; Hanlon v. Thonsen, 146 A.D.2d 743; Matter of Geller v Board of Elections, 112 A.D.2d 1054, affd 65 N.Y.2d 956; Ridgeway v. Ridgeway, 64 A.D.2d 736; Zigman v. McMackin, 8 Misc.2d 249, affd 6 A.D.2d 907; cf., Furey v. Furey, 76 A.D.2d 915). The counterclaims will remain pending until they have been properly disposed of by an appealable order or judgment (see, Bon Air Estates v. Village of Suffern, 32 A.D.2d 921, 923).
As to Batra's appeals from the judgment of foreclosure dated December 20, 1989, and from the order entered November 7, 1990, we find that all of his arguments are without merit and have no basis in law or in equity. Bracken, J.P., Copertino, Pizzuto and Hart, JJ., concur.