Opinion
05-10-2024
Terri VIGLIETTA, Individually and as Executor of the Estate of Benedict Viglietta, Deceased, Plaintiff, v. ASBESTOS CORPORATION LIMITED, et al., Defendants, Hedman Resources Limited, Defendant-Appellant. Occidental Chemical Corporation, Nonparty-Respondent. (Appeal No. 1.)
CLYDE & CO US LLP, NEW YORK CITY (PETER J. DINUNZIO OF COUNSEL), FOR DEFENDANT-APPELLANT. PHILLIPS LYTLE LLP, BUFFALO (JOSHUA GLASGOW OF COUNSEL), FOR NONPARTY-RESPONDENT.
Appeal from an order of the Supreme Court, Niagara County (Deborah A. Chimes, J.), entered April 21, 2022. The order, insofar as appealed from, granted the motion of nonparty Occidental Chemical Corporation to quash a subpoena issued to it by defendant Hedman Resources Limited.
CLYDE & CO US LLP, NEW YORK CITY (PETER J. DINUNZIO OF COUNSEL), FOR DEFENDANT-APPELLANT.
PHILLIPS LYTLE LLP, BUFFALO (JOSHUA GLASGOW OF COUNSEL), FOR NONPARTY-RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, GREENWOOD, NOWAK, AND KEANE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that said appeal is unanimously dismissed without costs.
Memorandum: Defendant Hedman Resources Limited (Hedman) appeals from an order insofar as it granted the motion of nonparty Occidental Chemical Corporation (OCC) to quash a subpoena served on OCC by Hedman. During the pendency of this appeal, this matter proceeded to trial, the jury returned a verdict against Hedman and another party, and Hedman appealed from the judgment.
The appeal from the order must be dismissed inasmuch as the order is subsumed in the final judgment (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 [1976]; Knapp v. Finger Lakes NY, Inc., 184 A.D.3d 335, 337, 125 N.Y.S.3d 824 [4th Dept. 2020]; Smith v. Catholic Med. Ctr. of Brooklyn & Queens, 155 A.D.2d 435, 435, 547 N.Y.S.2d 96 [2d Dept. 1989]; see generally CPLR 5501 [a] [1]).