Gettner v. Getty Oil Co.

765 N.E.2d 297, 97 N.Y.2d 696, 739 N.Y.S.2d 93, 2002 N.Y. LEXIS 74

Opinion

Motion for reargument denied [see, 97 NY2d 634]. Inasmuch as the November 1999 Appellate Division order was nonfinal, the Court of Appeals did not have jurisdiction to entertain a motion for leave to appeal from that order and accordingly dismissed plaintiffs’ March 2000 motion for leave to appeal from that order (95 NY2d 791). The Court of Appeals thus treated plaintiffs’ August 2001 motion for leave to appeal, which plaintiffs noticed as being from the November 1999 order, as being from the July 2001 final Appellate Division order to bring up for review, if appropriate, the prior nonfinal November 1999 Appellate Division order. The Court of Appeals previously had reviewed the November 1999 order on plaintiffs’ June 2000 motion for leave to appeal from the final Supreme Court judgment pursuant to CPLR 5602 (a) (1) (ii) and denied leave to appeal (95 NY2d 860). Thus, the Court of Appeals did not have jurisdiction of plaintiffs’ August 2001 motion seeking such review (see, Parker v Rogerson, 35 NY2d 751; Karger, Powers of the New York Court of Appeals § 51 [3d ed]).