| Mackiewicz v Autumn View Health Care Facility |
| 2023 NY Slip Op 05866 [221 AD3d 1524] |
| November 17, 2023 |
| Appellate Division, Fourth Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Anne Mackiewicz, as Executor of the Estate of Paul O.
Jessen, Deceased, Respondent, v Autumn View Health Care Facility et al., Appellants. |
Harris Beach PLLC, New York City (Brian D. Ginsberg of counsel), for defendants-appellants.
Brown Chiari, LLP, Buffalo (Andrea N. Conjerti of counsel), for plaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Catherine R. Nugent Panepinto, J.), entered November 14, 2022. The order, inter alia, denied the motion of defendants insofar as it sought to dismiss the complaint.
It is hereby ordered that said appeal is unanimously dismissed without costs.
Memorandum: As limited by their brief, defendants appeal from an order that, inter alia, denied their motion insofar as it sought to dismiss the complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7). We conclude that the appeal must be dismissed inasmuch as that order was materially amended by a subsequent order (see Matter of Eric D. [appeal No. 1], 162 AD2d 1051, 1051 [4th Dept 1990]), and we decline to exercise our discretion to treat the notice of appeal as one taken from the subsequent order (see Matter of Justeen T., 17 AD3d 1148, 1148 [4th Dept 2005]). Present—Smith, J.P., Lindley, Montour, Greenwood and DelConte, JJ.