PRESENT: SCUDDER, P. J., SMITH, CENTRA, LINDLEY, AND MARTOCHE, JJ.

DOCKET NO. CA 12-00173
DOCKET NO. CA 13-00146

CARMEN BRITT AND CARMEN BRITT, AS EXECUTOR OF THE ESTATE OF LULA BAITY, DECEASED, PLAINTIFF-APPELLANT, V BUFFALO MUNICIPAL HOUSING AUTHORITY, ELAINE GARBE, BISILOLA F. JACKSON, AS ADMINISTRATOR OF THE ESTATE OF JERELENE ELIZABETH GIWA, DECEASED, GRACE MANOR HEALTH CARE FACILITY, INC., DAVID J. GENTNER, MARY STEPHAN, KATHY RANDALL, TIFFANY MATTHEWS, PHILLIP J. RADOS, M.D., DEFENDANTS-RESPONDENTS, ET AL., DEFENDANTS. (APPEAL NO. 1.) CARMEN BRITT AND CARMEN BRITT, AS EXECUTOR OF THE ESTATE OF LULA BAITY, DECEASED, PLAINTIFF-APPELLANT, V BUFFALO MUNICIPAL HOUSING AUTHORITY, ELAINE GARBE, BISILOLA F. JACKSON, AS ADMINISTRATOR OF THE ESTATE OF JERELENE ELIZABETH GIWA, DECEASED, GRACE MANOR HEALTH CARE FACILITY, INC., DAVID J. GENTNER, MARY STEPHAN, KATHY RANDALL, TIFFANY MATTHEWS, PHILLIP J. RADOS, M.D., DEFENDANTS-RESPONDENTS. (APPEAL NO. 2.)

Respondents 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 October 18, 2012 (appeal No. 2), on the ground that the order was entered upon appellant's default, and having moved for other relief,

Now, upon reading and filing the affidavit of Elizabeth G. Adymy, Esq., sworn to January 17, 2013, the affidavit of John J. Marchese, Esq., sworn to January 17, 2013, the affidavit of Adam C. Ferrandino, Esq., sworn to February 17, 2013, the notices of motion with proof of service thereof, and the affirmation of Frank S. Falzone, Esq., dated January 25, 2013, and due deliberation having been had thereon,

It is hereby ORDERED that the motions are denied with leave for the parties to address in their briefs the issue of what matters are reviewable by this Court.

Memorandum: Notwithstanding the prohibition set forth in CPLR 5511 against an appeal from an order or judgment entered upon the default of the appealing party, the appeal from the final order entered October 18, 2012 brings up for review those " �matters which were the subject of contest' " before the Supreme Court (Tun v Aw, 10 AD3d 651, 652, quoting James v Powell, 19 NY2d 249, 256 n 3, rearg denied 19 NY2d 862; see also Hurd v Lis, 126 AD2d 163, 166), including any prior contested nonfinal order that necessarily affected the final order (see James, 19 NY2d at 256 n 3, cf. Matter of Brittany C. [Linda C.], 67 AD3d 788, 789).

Entered: March 1, 2013

Frances E. Cafarell, Clerk