| S. SHANE KHANJANI V NORMAN SCHREIBER S. SHANE KHANJANI V NORMAN SCHREIBER (APPEAL NO. 2.) |
| Motion No: CA 12-00493 |
| Slip Opinion No: 2012 NY Slip Op 69396(U) |
| Decided on April 3, 2012 |
| Appellate Division, Fourth Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
PRESENT: SCUDDER, P. J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.
DOCKET NO. CA 12-00493
DOCKET NO. CA 12-00494
| S. SHANE KHANJANI, PLAINTIFF-APPELLANT, V NORMAN SCHREIBER,
DEFENDANT-RESPONDENT. (APPEAL NO. 1.) S. SHANE KHANJANI, PLAINTIFF-APPELLANT, V NORMAN SCHREIBER,
DEFENDANT-RESPONDENT. (APPEAL NO. 2.) |
Respondent having moved to dismiss the appeal taken herein from an order of the Supreme Court entered in the Office of the Clerk of the County of Erie on August 24, 2010 (appeal No. 1), on the ground that it is untimely pursuant to CPLR 5513, and
Respondent also having moved to dismiss the appeal taken herein from a judgment of the Supreme Court entered in the Office of the Clerk of the County of Erie on October 24, 2011 (appeal No. 2), on the ground that appellant has failed to perfect timely the appeal,
Now, upon reading and filing the affidavits of J. Michael Lennon, Esq., sworn to March 8, 2012, and March 12, 2012, the notice of motion with proof of service thereof, and the affidavit of Jon E. Minear, Esq., sworn to March 13, 2012, and due deliberation having been had thereon,
It is hereby ORDERED that the motion insofar as it seeks to dismiss appeal No. 1 is dismissed as academic, and
It is further ORDERED that the motion insofar as it seek to dismiss appeal No. 2 is granted and appeal No. 2 is dismissed without further order unless the appeal is perfected on or before June 4, 2012.
Memorandum: The motion insofar as it seeks to dismiss as untimely the appeal from the order entered August 24, 2010 is academic for the following reasons. First, no direct appeal lies from an order denying a motion for summary judgment where, as here, a final judgment has been entered (see Pixel Intl. Network v State of New York, 255 AD2d 666). Second, the issue of whether Supreme Court properly denied appellant's motion for summary judgment is reviewable in the context of the timely appeal from the final judgment (see CPLR 5501 [a] [1]; Matter of Aho, 39 NY2d 241, 248; Smith v Smith, 289 AD2d 919, 920 n; Doe v Community Health Plan-Kaiser Corp., 268 AD2d 183, 185-186; Hurd v Lis, 126 AD2d 163, 166).
Entered: April 3, 2012
Frances E. Cafarell, Clerk