Goldman v. Goldman

246 A.D.2d 511, 666 N.Y.S.2d 940, 1998 N.Y. App. Div. LEXIS 167

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 12, 1998
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of contract, the defendant Steven L. Goldman appeals from an order of the Supreme Court, Suffolk County (Seidell, J.), dated November 1, 1996, which, sua sponte, amended an earlier order of the same court dated August 30, 1995, and, inter alia, directed him to deposit the sum of $40,000 into the account of a receiver so as to cover the moving costs of the third-party defendants Dennis L. Bernardini and Ernest Vomero. The third-party defendants Dennis L. Bernardini and Ernest Vomero cross-appeal from the same order.

Ordered that the cross appeal is dismissed as abandoned; and it is further,

Ordered that the appeal is dismissed; and it is further,

Ordered that the respondents are awarded one bill of costs.

The appeal must be dismissed as no appeal lies as of right from an order of the court that is issued sua sponte (see, CPLR 5701 [c]; Kokalari v Kokalari, 166 AD2d 418), and leave to appeal has not been granted.

Were we not dismissing the appeal, we would affirm the order. The contention of the defendant Steven L. Goldman that the Supreme Court improperly amended its prior order (Herpe v Herpe, 225 NY 323, 327) ignores his failure to timely fulfill certain conditions upon which the earlier order was based. Because the time by which he was to have accomplished the conditions had elapsed, the court properly increased the amount to be deposited into the receiver’s account from $15,000 to $40,000. Pizzuto, J. P., Santucci, Joy and Florio, JJ., concur.