308 West 30th Street, L.L.C. v. Cogan

Appellate Division of the Supreme Court of New York

308 West 30th Street, L.L.C. v. Cogan

289 A.D.2d 93, 734 N.Y.S.2d 155, 2001 N.Y. App. Div. LEXIS 12102

Appellate Division of the Supreme Court of the State of New York·Decided December 13, 2001·Published·Cited by 2 cases

Opinion

Appeal from order, Supreme Court, New York County (Helen Freedman, J.), entered on or about April 13, 2001, which, inter alia, granted plaintiffs motion for partial summary judgment upon its cause of action for an accounting and directed defendants to “provide plaintiff with an accounting * * * for any periods for which defendants have kept records in connection with their management of the Premises from 1967 through 1998,” unanimously dismissed, without costs.

Plaintiffs appeal is evidently premised upon the misconception that the appealed from order limits in some way the period covered by the accounting to six years from the commencement of this action. This is not the case inasmuch as the motion court expressly directed that the accounting is to cover “any periods for which defendants have kept records in connection with their management of [plaintiffs] Premises from 1967 through 1998” (emphasis added). Accordingly, since plaintiff is not aggrieved in the manner claimed by the order from which it purports to appeal, it is not a permissible appellant and its appeal must be dismissed (CPLR 5511).

Defendants’ contention that the scope of the ordered account[94]*94ing should be limited to the aforementioned six-year period is not properly before us, defendants having taken no appeal from the motion court’s order. Were the issue properly before us, however, we would find that the motion court correctly determined the temporal scope of the fiduciary accounting due from defendants (see, Matter of Zilkha, 174 AD2d 331, 334). Concur — Wallach, J. P., Lerner, Rubin, Buckley and Friedman, JJ.

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Appeal from order, Supreme Court, New York County (Helen Freedman, J.), entered on or about April 13, 2001, which, inter alia, granted plaintiffs motion for partial summary judgment upon its cause of action for an accounting and directed defendants to “provide plaintiff with an accounting * * * for any periods for which defendants have kept records in connection with their management of the Premises from 1967 through 1998,” unanimously dismissed, without costs.

Plaintiffs appeal is evidently premised upon the misconception that the appealed from order limits in some way the period covered by the accounting to six years from the commencement of this action. This is not the case inasmuch as the motion court expressly directed that the accounting is to cover “any periods for which defendants have kept records in connection with their management of [plaintiffs] Premises from 1967 through 1998” (emphasis added). Accordingly, since plaintiff is not aggrieved in the manner claimed by the order from which it purports to appeal, it is not a permissible appellant and its appeal must be dismissed (CPLR 5511).

Defendants’ contention that the scope of the ordered account[94]*94ing should be limited to the aforementioned six-year period is not properly before us, defendants having taken no appeal from the motion court’s order. Were the issue properly before us, however, we would find that the motion court correctly determined the temporal scope of the fiduciary accounting due from defendants (see, Matter of Zilkha, 174 AD2d 331, 334). Concur — Wallach, J. P., Lerner, Rubin, Buckley and Friedman, JJ.

308 West 30th Street, L.L.C. v. Cogan, 289 A.D.2d 93, 734 N.Y.S.2d 155, 2001 N.Y. App. Div. LEXIS 12102 (N.Y. Ct. App. 2001).

Pincite

289 A.D.2d 93 (308 West 30th Street, L.L.C. v. Cogan) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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