APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
| HUGH J. SNEDDON, Respondent, -against- HELENA GREENE & LAWRENCE GREENE, Appellants. |
DECISION
Motion by appellants for leave to reargue or, in the alternative, to appeal to the Appellate Division denied.
Contrary to appellants' contention, their claims to attorney's fees arising from the dismissal of respondent's initial proceeding and the voluntary withdrawal of the second were not dismissed by virtue of the application of Matter of Aho (39 NY2d 241 [1976]). Pursuant to CPLR 5501 (a) (1), all the issues affecting the final judgment raised in the order from which appellants' inappropriately sought a direct appeal were brought up for appellate review by the appeal from the final judgment. Moreover, legal fees "are appropriate only when a court's decision constitutes the ultimate outcome of the matter" (North Waterside Redevelopment Co. v Febbraro, 256 AD2d 261, 262 [1998]). In this case, the dismissal of a summary proceeding without prejudice to refile and a voluntary withdrawal of such a proceeding before the merits were reached did not represent ultimate outcomes (id.; see also Ron Rose Group, Inc. v Gavish, 2002 NY Slip Op 40194[U] [App Term, 9th & 10th Jud Dists]; cf. N.V. Madison, Inc. v Saurwein, 103 Misc 2d 996, 998-999 [App Term, 1st Dept 1980]). An award of attorney 's fees is properly determined on the basis of the ultimate outcome of the parties' controversy, which here left neither side a prevailing party.
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
| HSBC BANK USA FORMERLY KNOWN AS MARINE MIDLAND BANK, Appellant, -against- BORUCH LEITER, Respondent. |
DECISION
Motion by defendant-respondent for an order striking portions of appellant's brief, leave to file a sur-reply brief and a stay of the appeal denied.
This court will not consider matters which are dehors the record.