Anthony's Inc. v. Tennenbaum

54 A.D.2d 590, 1976 N.Y. App. Div. LEXIS 13960

Opinion

Motion by plaintiff-respondent to dismiss appeals taken by defendant-appellant by notices of appeal dated June 24, 1976 and July 6, 1976. Motion granted, without costs, only with respect to the appeal taken on June 24, 1976. The papers indicate that final judgment in this matter was entered on June 23, 1976. On June 24, 1976 defendant filed a notice of appeal from an earlier order of the County Court, dated January 19, 1976, which struck his answer. Subsequently, on July 6, 1976, defendant filed a notice of appeal from the final judgment. The first notice of appeal was clearly untimely (CPLR 5513) and is also subject to dismissal on the ground that the right to appeal from an intermediate order does not survive the entry of final judgment (10 Carmody-Wait, 2d, NY Prac, § 70:324, p 590; cf. Matter of New York Life Ins. Co. v Galvin, 41 AD2d 83, 86, mod on other grounds 35 NY2d 52). However, since the order striking the answer affects the final judgment, it is subject to review on the timely appeal taken from the final judgment (CPLR 5501, subd [a], par 1). Koreman, P. J., Greenblott, Sweeney, Kane and Mahoney, JJ., concur.