Greater NY, LLC v. 800 Jeffco Corp.

OPINION OF THE COURT Memorandum. Appeal dismissed. In this action, plaintiff moved for summary judgment on its first two causes of action and defendant cross-moved, pursuant to CPLR 3211 and 3212, to dismiss the complaint. By order entered July 18, 2007, the Civil Court granted plaintiffs motion to the extent of awarding it the sum of $626.29 and granted defendant’s cross motion to the extent of dismissing, among other things, plaintiffs third and fourth causes of action. As limited by its brief, plaintiff seeks review of so much of the July 18, 2007 order as granted defendant summary judgment dismissing plaintiffs third and fourth causes of action. A judgment was subsequently entered on August 15, 2007 awarding plaintiff the principal sum of $626.29. The right of direct appeal from an intermediate order terminates upon entry of a judgment (see Matter of Aho, 39 NY2d 241, 248 [1976]). However, a notice of appeal from an order directing the entry of judgment shall be deemed to specify a judgment upon that order if it was entered after the service of the notice of appeal (see CPLR 5501 [c]). An appeal from a judgment brings up for review any non-final order which necessarily affects the judgment (see CPLR 5501 [a] [1]). In this case, the portion of the July 18, 2007 order that granted defendant summary judgment dismissing plaintiff’s third and fourth causes of action necessarily affects the judgment and would be reviewable upon an appeal from the judgment. However, the record indicates that the Civil Court did not consider any opposition to defendant’s cross motion, and plaintiffs motion, which was considered by the court, was only addressed to the first two causes of action. Consequently, the order, insofar as plaintiff seeks review thereof, must be deemed to have been entered on default. Accordingly, plaintiff’s appeal from the judgment must be dismissed (CPLR 5511; see Benitez v Olson, 29 AD3d 503 [2006]; Viggiani v Grodotzke, 306 AD2d 273 [2003]; Grabel v Amalgamated Warbasse Houses, Inc., 19 Misc 3d 136[A], 2008 NY Slip Op 50746[U] [App Term, 2d & 11th Jud Dists 2008]; Maltsev v New York City Tr. Auth., 19 [24] Misc 3d 127[A], 2008 NY Slip Op 50504[U] [App Term, 2d & 11th Jud Dists 2008]; see also James v Powell, 19 NY2d 249, 256 n 3 [1967]). Weston Patterson, J.R, Golia and Rios, JJ., concur.