Opinion
09-14-2016
Stephen KATZ, et al., appellants, v. Barry J. BEIL, et al., respondents.
Certilman Balin Adler & Hyman, LLP, East Meadow, NY (John H. Gionis, Donna–Marie Korth, and Tony G. Dulgerian of counsel), for appellants. Meister Seelig & Fein LLP, New York, NY (Mitchell Schuster and Kevin Fritz of counsel), for respondents Barry J. Beil and Stanley Pine. Lewis Brisbois Bisgaard & Smith LLP, New York, NY (Mark K. Anesh and Philip J. Furia of counsel), for respondents Finkle Ross & Rost, LLP, and Finkle & Ross, LLP.
Certilman Balin Adler & Hyman, LLP, East Meadow, NY (John H. Gionis, Donna–Marie Korth, and Tony G. Dulgerian of counsel), for appellants.
Meister Seelig & Fein LLP, New York, NY (Mitchell Schuster and Kevin Fritz of counsel), for respondents Barry J. Beil and Stanley Pine.
Lewis Brisbois Bisgaard & Smith LLP, New York, NY (Mark K. Anesh and Philip J. Furia of counsel), for respondents Finkle Ross & Rost, LLP, and Finkle & Ross, LLP.
Opinion In an action, inter alia, to recover damages for breach of fiduciary duty, the plaintiffs appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Nassau County (Driscoll, J.), entered October 23, 2013, as directed a hearing on certain branches of their motion which were pursuant to CPLR 3025(b) for leave to amend the amended complaint, and (2) so much of an order of the same court entered November 4, 2013, as denied certain branches of their motion which were pursuant to CPLR 3025(b) for leave to amend the amended complaint.
ORDERED that the appeal from the order entered October 23, 2013, is dismissed, without costs or disbursements, as no appeal lies as of right from an order which directs a hearing to aid in the disposition of a motion (see Serraro v. Staropoli, 94 A.D.3d 1083, 1084, 943 N.Y.S.2d 201 ), and we decline to grant leave to appeal in view of the fact that a judgment has been entered in the action (see Willoughby Rehabilitation & Health Care Ctr., LLC v. Webster, 134 A.D.3d 811, 812, 22 N.Y.S.3d 81 ); and it is further,
ORDERED that the appeal from the order entered November 4, 2013, is dismissed, without costs or disbursements.
The appeal from the order entered November 4, 2013, must be dismissed because the right of direct appeal therefrom terminated with the entry of a judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeals from the orders entered October 23, 2013, and November 4, 2013, are brought up for review and have been considered on the companion appeal from the judgment (see CPLR 5501[a] ; Katz v. Beil, 142 A.D.3d 957, 39 N.Y.S.3d 157, 2016 WL 4769415 [Appellate Division Docket No. 2014–07546; decided herewith] ).
Motion by the respondents Barry J. Beil and Stanley Pine on appeals from two orders of the Supreme Court, Nassau County, entered October 23, 2013, and November 4, 2013, respectively, to dismiss the appeal from the order entered November 4, 2013, on the ground that it has been rendered academic. By decision and order on motion of this Court dated June 11, 2014, the motion was held in abeyance and referred to the Justices hearing the appeals for determination upon the argument or submission thereof. Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeals, it is
ORDERED that the motion is denied as academic in light of our determination of the appeal from the order entered November 4, 2013 (see Katz v. Beil, 142 A.D.3d 957, 39 N.Y.S.3d 157, 2016 WL 4769415 [decided herewith] ).
DILLON, J.P., ROMAN, MILLER and LaSALLE, JJ., concur.