Alex M. Ex Rel. Gennaro M. v. City of New York

2017 NY Slip Op 1982, 148 A.D.3d 533, 48 N.Y.S.3d 598

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 16, 2017
• Docket: 350638/09 3438N 3437
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about December 2, 2015, which granted nonparty respondent’s (Irom) motion to confirm a referee’s report, dated September 14, 2015, recommending an apportionment of fees between outgoing and incoming counsel, unanimously affirmed, without costs. Appeal from order, dated March 19, 2015, but apparently never entered, unanimously dismissed, without costs, as taken from a nonappealable paper.

The referee’s findings are supported by the record (see Lai Ling Cheng v Modansky Leasing Co., 73 NY2d 454, 458 [1989]; Board of Mgrs. of Boro Park Vil.-Phase I Condominium v Boro Park Townhouse Assoc., 284 AD2d 237, 238 [1st Dept 2001]). He considered the relevant factors (Lai Ling Cheng, 73 NY2d at 458; Board of Mgrs., 284 AD2d at 237). As the trier of fact, he was in the best position to determine the issues referred to him (Namer v 152-54-56 W. 15th St. Realty Corp., 108 AD2d 705 [1st Dept 1985]).

The appeal from the March order should be dismissed, because the order was never entered (see Jemzura v Jemzura, 24 AD2d 809 [3d Dept 1965]). Furthermore, nonparty appellant does not object to the reference directed by the order, but rather to the fact that, in a transcript that was not entered, the court ruled that Irom was not discharged for cause. That ruling is not appealable (Matter of Juan Alejandro R., 221 AD2d 183 [1st Dept 1995]; see also Clemons v Schindler El. Corp., 87 AD3d 452 [1st Dept 2011]).

Concur — Tom, J.P., Acosta, Kapnick, Kahn and Gesmer, JJ.