Hausmann v. United States Life Insurance

128 A.D.3d 545, 11 N.Y.S.3d 479

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 19, 2015
• Docket: 15166 650038/12
• Status: Published

Opinion

Order, Supreme Court, New York County (Ellen M. Coin, J.), entered January 29, 2014, which granted defendants’ motion for entry of judgment in their favor, and directed the Clerk to enter judgment dismissing the complaint with prejudice, unanimously affirmed, without costs.

The court correctly directed entry of judgment in favor of defendants, because no claims remained in this action. Although, in a prior order entered May 3, 2012, the court severed and continued the breach of contract cause of action, in its underlying decision, which is controlling (see Madison III Assoc. Ltd. Partnership v Brock, 258 AD2d 355, 355 [1st Dept 1999]; Curry v Curry, 14 AD3d 646, 647 [2d Dept 2005]), it stated that it was dismissing the cause of action except with respect to plaintiffs claim for post-termination compensation. That post-termination compensation claim was subsequently discontinued by stipulation entered August 21, 2013. Because plaintiff never appealed from the order entered May 3, 2012, he is bound by the underlying decision (see Fusco v Kraumlap Realty Corp., 1 AD3d 189, 193 [1st Dept 2003] [the correctness of the Housing Court’s decision and order was not before this Court, where the order was never appealed]).

We have considered plaintiffs remaining contentions and find them unavailing. Concur — Mazzarelli, J.R, Acosta, Saxe, Manzanet-Daniels and Clark, JJ.