In re Thomas & Agnes Carvel Foundation

2 A.D.3d 870, 769 N.Y.S.2d 391, 2003 N.Y. App. Div. LEXIS 14095

Opinion

— In a proceeding, inter alia, to enforce the terms of a reciprocal agreement and to enjoin the conveyance of certain real properties, Pamela Carvel appeals, as limited by her brief, from so much of an order of the Surrogate’s Court, Westchester County (Scarpino, S.), dated June 21, 2001, as granted those branches of the motion of Thomas and Agnes Carvel Foundation which were to dismiss the second counterclaim and the second, ninth, thirteenth, fourteenth, sixteenth, and eighteenth affirmative defenses asserted in her answer and Thomas and Agnes Carvel Foundation cross-appeals, as limited by its brief, from (1) stated portions of a decision of the same court dated March 20, 2001, and (2) so much of the order dated June 21, 2001, as denied those branches of its motion which were to dismiss the first counterclaim and the fifth, sixth, seventh, eighth, twelfth, and twentieth affirmative defenses asserted in the answer. Justice McGinity has been substituted for the late Justice O’Brien (see 22 NYCRR 670.1 [c]).

Ordered that the cross appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v Green Constr. Corp., 100 AD2d 509 [1984]); and it is further,

Ordered that the appeal and cross appeal from the order dated June 21, 2001, are dismissed, without costs or disbursements.

The appeal and cross appeal from the order dated June 21, 2001, must be dismissed because the right of direct appeal therefrom terminated with the entry of a decree on July 8, 2002 (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal and cross appeal from the order are brought up for review and have been considered on the appeal from the decree (see CPLR 5501 [a] [1]; Matter of Carvel, 2 AD3d 847 [2003] [decided herewith]). Krausman, J.P., McGinity, Townes and Cozier, JJ., concur.