Opinion
2017–03720 File No. 754/90
12-01-2021
In the MATTER OF Frank MOORE, Jr., deceased. Eileen S. Kyne, petitioner-respondent; v. Michele Moore, objectant-appellant; v. Frank Moore III, respondent-respondent.
Michele Moore, Huntington, NY, objectant-appellant pro se. Stephen P. Kyne, Huntington, NY, and McCarthy & Reynolds, P.C., Huntington, NY (Michael L. McCarthy of counsel), for petitioner-respondent, and Craco & Ellsworth, LLP, Huntington, NY (Andrew C. Ellsworth of counsel), for respondent-respondent (one brief filed).
Michele Moore, Huntington, NY, objectant-appellant pro se.
Stephen P. Kyne, Huntington, NY, and McCarthy & Reynolds, P.C., Huntington, NY (Michael L. McCarthy of counsel), for petitioner-respondent, and Craco & Ellsworth, LLP, Huntington, NY (Andrew C. Ellsworth of counsel), for respondent-respondent (one brief filed).
WILLIAM F. MASTRO, J.P., VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, LARA J. GENOVESI, JJ.
DECISION & ORDER
In a probate proceeding in which the trustee, Eileen S. Kyne, petitioned to judicially settle her final account, the objectant, Michele Moore, appeals from stated portions of an order of the Surrogate's Court, Suffolk County (John M. Czygier, Jr., S.), dated January 31, 2017.
Motion by the respondent-respondent to dismiss the appeal on the ground that the right of direct appeal from the order terminated upon entry of a decree of the same court dated July 17, 2018. By decision and order on motion of this Court dated December 26, 2018, the motion was held in abeyance and referred to the panel of Justices hearing the appeal 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 argument of the appeal, it is
ORDERED that the motion is granted; and it is further,
ORDERED that the appeal is dismissed, with costs payable by the objectant-appellant personally.
The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the decree in the proceeding (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 appeal from the order are not brought up for review and have not been considered on the appeal from the decree ( Matter of Moore, ––– A.D.3d ––––, 154 N.Y.S.3d 851 [2021] ), as the order does not "necessarily affect[ ]" the decree ( CPLR 5501[a][1] ; see Oakes v. Patel, 20 N.Y.3d 633, 643–644, 965 N.Y.S.2d 752, 988 N.E.2d 488 ).
MASTRO, J.P., BRATHWAITE NELSON, IANNACCI and GENOVESI, JJ., concur.