Opinion
Motion No: 2019-00106 KC
02-21-2019
LVOV Acupuncture, P.C., as Assignee of Dugard Ciceron, Respondent, v. Erie Insurance Company of New York, Appellant.
THOMAS P. ALIOTTA
DAVID ELLIOT, JJ.
DECISION & ORDER ON MOTION
Appeal from an order of the Civil Court of the City of New York, Kings County, entered October 31, 2018. By order to show cause dated January 18, 2019, the parties were directed to show cause why the appeal should or should not be dismissed on the ground that service of the notice of appeal was made upon respondent's attorney at an improper address and no application had been made pursuant to CPLR 5520 (a) to cure the omission. Appellant has submitted responsive papers which include a copy of a subsequently entered judgment and a notice of appeal therefrom.
Upon the order to show cause and the papers filed by appellant in response thereto, it is
ORDERED, on the court's own motion, that the appeal from the order entered October 31, 2018 is dismissed, as the right of direct appeal from the intermediate order terminated with the entry of a judgment on December 19, 2018 (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order may be brought up for review and considered on the appeal from the judgment (see CPLR 5501 [a] [1]); and it is further,
ORDERED that the motion to dismiss based on improper service of the notice of appeal is denied as moot.
ENTER:
Paul Kenny
Chief Clerk