Opinion
2014-03-26
EDGAR S. (Anonymous), by the guardian of his person LITA S. (Anonymous), plaintiff-appellant, Maria S. (Anonymous), plaintiff-respondent, v. Rolando ROMAN, etc., et al., defendants; Bernard F. McGovern, nonparty-respondent.
Feng Li, New York, N.Y., for plaintiff-appellant. Bruce G. Clark & Associates, P.C., Port Washington, N.Y. (Diane C. Cooper of counsel), for plaintiff-respondent.
Feng Li, New York, N.Y., for plaintiff-appellant. Bruce G. Clark & Associates, P.C., Port Washington, N.Y. (Diane C. Cooper of counsel), for plaintiff-respondent.
RUTH C. BALKIN, J.P., SANDRA L. SGROI, JEFFREY A. COHEN, and HECTOR D. LASALLE, JJ.
In an action, inter alia, to recover damages for medical malpractice, etc., Lita S., as guardian of the person of the plaintiff Edgar S., appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (O'Donoghue, J.), entered October 26, 2012, as directed the distribution of the proceeds of a certain settlement agreement. Motion by the plaintiff-respondent, inter alia, to dismiss the appeal on the grounds that the appellant is not aggrieved by the order appealed from and that the appellant lacks standing. By decision and order on motion of this Court dated August 21, 2013, those branches of the motion were 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 submission of the appeal, it is
ORDERED that the branch of the motion which is to dismiss the appeal on the ground that the appellant is not aggrieved by the order appealed from is granted ( seeCPLR 5511); and it is further,
ORDERED that the branch of the motion which is to dismiss the appeal on the ground that the appellant lacks standing is denied as academic; and it is further,
ORDERED that the appeal is dismissed, with costs to the plaintiff-respondent.
A party is aggrieved within the meaning of CPLR 5511 “when he or she asks for relief but that relief is denied in whole or in part,” or, when someone “asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part” ( Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132 [emphasis omitted]; see Mahmood v. Gutman, 81 A.D.3d 792, 792, 916 N.Y.S.2d 802). “ ‘[A party] is not aggrieved by an order which does not grant relief [he or she] did not request’ ” ( Spielman v. Mehraban, 105 A.D.3d 943, 943–944, 963 N.Y.S.2d 704, quoting Schlecker v. Yorktown Elec. & Light. Distribs., Inc., 94 A.D.3d 855, 855, 941 N.Y.S.2d 886). Here, the appellant is not aggrieved by so much of the order appealed from as directed the distribution of the proceeds of a certain settlement agreement, since she did not move for any relief nor was any relief granted against her. Since the appellant is not aggrieved, the appeal must be dismissed ( seeCPLR 5511; Mixon v. TBV, Inc., 76 A.D.3d at 156–157, 904 N.Y.S.2d 132).