Crystal v. Manes

130 A.D.2d 979, 516 N.Y.S.2d 823, 1987 N.Y. App. Div. LEXIS 46970

Opinion

Motion to dismiss appeal granted. Cross motion for leave to appeal denied. Memorandum: The order entered July 29, 1986 dismissed the second, third, fourth and fifth causes of action set forth in plaintiff’s complaint. Defendants served a copy of that order with notice of entry upon plaintiff on July 29, 1986. A subsequent order entered January 12, 1987 dismissed the remaining cause of action. We dismiss plaintiff’s appeal from the order entered July 29, 1986 as untimely. Contrary to plaintiff’s assertion, his appeal from the order entered January 12, 1987 does not bring up for review the July 29 order. CPLR 5501 (a) (1) provides that an appeal from a final judgment brings up for review any nonfinal judgment or order which necessarily affects the final judgment. Plaintiff’s appeal was from an order and not from a judgment and, therefore, it could not bring up for review the prior order. Moreover, the prior order, which dismissed several causes of action set forth in plaintiff’s complaint, was a final order and, thus, cannot be brought up for review on appeal even from an appeal from a final judgment (see, Sirlin Plumbing Co. v Maple Hill Homes, 20 NY2d 401; Matter of Burke v Axelrod, 90 AD2d 577).

We also dismiss plaintiff’s appeal and deny his cross motion for permission to appeal from the denial of his ex parte application on February 5, 1987 for an order to show cause (see, Matter of Singleton v New York State Bd. of Parole, 78 ; Matter of Bates v La Vallee, 33 AD2d 833; 10 Carmody-Wait 2d, NY Prac § 70:28). Present—Callahan, J. P., Denman, Boomer, Balio and Lawton, JJ.