Juliano v. Genesee Gateway, LLC

2020 NY Slip Op 06658, 132 N.Y.S.3d 363, 188 A.D.3d 1680

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 2020
• Docket: 988 CA 19-02053
• Status: Published

Opinion

Juliano v Genesee Gateway, LLC (2020 NY Slip Op 06658)

Juliano v Genesee Gateway, LLC

2020 NY Slip Op 06658

Decided on November 13, 2020

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 13, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND TROUTMAN, JJ.

988 CA 19-02053

[*1]CHRISTOPHER J. JULIANO AND THOMAS R. JULIANO, PLAINTIFFS-RESPONDENTS,

v

GENESEE GATEWAY, LLC, DEFENDANT-APPELLANT.

DUKE, HOLZMAN, PHOTIADIS & GRESENS, LLP, BUFFALO (PATRICIA GILLEN OF COUNSEL), FOR DEFENDANT-APPELLANT.

Appeal from an order of the Supreme Court, Erie County (John F. O'Donnell, J.), entered November 6, 2019. The order, among other things, granted plaintiffs a temporary easement and a temporary restraining order against defendant.

It is hereby ORDERED that said appeal is unanimously dismissed without costs.

Memorandum: Defendant appeals from an ex parte order granting plaintiffs a temporary easement over defendant's property along with a temporary restraining order prohibiting defendant from blocking the back door of plaintiffs' building. We conclude that "[i]nasmuch as no appeal lies as of right 'from an ex parte order, including an order entered sua sponte' . . . , and permission to appeal has not been granted (see CPLR 5701 [c]), the appeal must be dismissed" (Obot v Medaille Coll., 82 AD3d 1629, 1630 [4th Dept 2011], appeal dismissed 17 NY3d 756 [2011], quoting Sholes v Meagher, 100 NY2d 333, 335 [2003]; see CPLR 5701 [a] [2]). We decline to treat the notice of appeal as an application pursuant to CPLR 5704 (a) (cf. Matter of Shaw v Goodman, 291 AD2d 207, 207 [1st Dept 2002]; Matter of Tepper v Lonschein, 253 AD2d 435, 436 [2d Dept 1998]; Anostario v Anostario, 249 AD2d 612, 613 [3d Dept 1998]) inasmuch as Supreme Court has stayed enforcement of the order in question and the issues raised herein do not involve "questions of law, i.e., the interpretation of [a statute] and the propriety of the . . . [c]ourt's issuance of the ex parte order" (Anostario, 249 AD2d at 613).

Entered: November 13, 2020

Mark W. Bennett

Clerk of the Court