Opinion
1050 CA 19-00507
06-12-2020
Tina KNAPP and Michael Knapp, Plaintiffs-Appellants, v. FINGER LAKES NY, INC., Doing Business as Diversified Contracting Company, and Joel S. Smith, Defendants-Respondents.
MICHAEL KNAPP, PLAINTIFF-APPELLANT PRO SE. TREVETT CRISTO P.C., ROCHESTER (ERIC M. DOLAN OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
MICHAEL KNAPP, PLAINTIFF-APPELLANT PRO SE.
TREVETT CRISTO P.C., ROCHESTER (ERIC M. DOLAN OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: CENTRA, J.P., CARNI, CURRAN, AND TROUTMAN, JJ.
OPINION AND ORDER
Opinion by Troutman, J.:
It is hereby ORDERED that said appeal is unanimously dismissed without costs. Plaintiffs commenced this action to recover damages for, inter alia, diversion of trust funds in violation of Lien Law article 3-A. Following a jury trial, the jury found, inter alia, that plaintiffs sustained no damages as a result of defendants' admitted Lien Law violation. Plaintiffs moved pursuant to CPLR 4404 to set aside the verdict with respect to the Lien Law cause of action and for judgment in their favor, or, alternatively, for a new trial. A final judgment was entered August 21, 2018, and an order denying the CPLR 4404 motion was entered January 3, 2019. Plaintiffs appeal from the order, but not the judgment.
I
As a preliminary matter, we must consider whether a party may appeal directly from an order denying a CPLR 4404 motion when that order was entered after entry of a final judgment. In some of our previous cases, we have concluded that such an order is "subsumed in the judgment and the right to appeal directly therefrom terminated" ( Paul Revere Life Ins. Co. v. Campagna , 233 A.D.2d 954, 955, 649 N.Y.S.2d 113 [4th Dept. 1996] ; see Taylor v. Birdsong , 158 A.D.3d 1281, 1282, 68 N.Y.S.3d 363 [4th Dept. 2018] ). We now conclude that the rule set forth in Paul Revere Life Ins. Co. is inconsistent with the statutory framework and with Court of Appeals precedent, and should no longer be followed. Accordingly, we hold that an order otherwise appealable as of right (see CPLR 5701 [a] ) entered after the entry of a final judgment is not subsumed in the judgment, but is independently appealable. An appeal may be taken as of right from an order that, inter alia, "involves some part of the merits," "affects a substantial right," or "refuses a new trial" ( CPLR 5701 [a] [2] [iii]-[v] ). If, however, a court enters an "intermediate order" and subsequently enters a final judgment, the Court of Appeals has held that the entry of the judgment terminates the right to appeal from the order ( Matter of Aho , 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 [1976] ). In other words, the intermediate order merges into the final judgment (see e.g. Irvin v. Schardt , 259 App. Div. 474, 476, 20 N.Y.S.2d 219 [4th Dept. 1940], affd 286 N.Y. 668, 36 N.E.2d 699 [1941] ; Frank v. Rowland & Shafto, Inc. , 169 App. Div. 918, 918, 153 N.Y.S. 926 [1st Dept. 1915] ; Bates v. Holbrook , 89 App. Div. 548, 551, 85 N.Y.S. 673 [1st Dept. 1904], appeal dismissed 178 N.Y. 568, 70 N.E. 1094 [1904] ). Although the right of appeal terminates, the order is not beyond review. There is a statutory remedy. An appeal from the final judgment "brings up for review," inter alia, "any non-final judgment or order which necessarily affects the final judgment" or "any order denying a new trial" ( CPLR 5501 [a] [1], [2] ). Thus, CPLR 5501 (a) salvages the ability of aggrieved parties to seek review of the intermediate order on appeal.
On the other hand, orders entered after the entry of a final judgment cannot conceptually merge into the judgment. The rule in Aho applies only to an "intermediate order" ( 39 N.Y.2d at 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ; see O'Neill v. O'Neill , 174 A.D.3d 1526, 1527, 108 N.Y.S.3d 255 [4th Dept. 2019] ), which the Court of Appeals has defined as an order "made after the commencement of the action and before the entry of judgment" ( Fox v. Matthiessen , 155 N.Y. 177, 179, 49 N.E. 673 [1898] ). Consequently, inasmuch as the right of appeal from a post-judgment order remains in effect, we conclude that the appeal from the order here is properly before us.
II
Nevertheless, we are unable to address the merits of plaintiffs' contentions because the record does not include a full trial transcript, and therefore we dismiss the appeal (see Mergl v. Mergl , 19 A.D.3d 1146, 1147, 796 N.Y.S.2d 823 [4th Dept. 2005] ; see also Bouchey v. Claxton-Hepburn Med. Ctr. , 117 A.D.3d 1216, 1216-1217, 984 N.Y.S.2d 698 [3d Dept. 2014] ).