LDV Enterprises, Inc. v. Puma

285 A.D.2d 628, 728 N.Y.S.2d 671, 2001 N.Y. App. Div. LEXIS 7729

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 30, 2001
• Status: Published

Opinion

—In an action to foreclose a mortgage, the defendants Philip Puma, Rose Puma, and Brikar Realty, Ltd., appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Gowan, J.), dated August 31, 1999, as granted those branches of the plaintiffs motion which were to restore the action to the trial calendar and to add Anna Puma and 2365 A & J Catering, Inc., as additional defendants.

Ordered that the appeal from so much of the order as granted that branch of the plaintiffs motion which was to add Anna Puma and 2365 A & J Catering, Inc., as additional defendants is dismissed, as the appellants are not aggrieved by that portion of the order (see, CPLR 5511; Coffey v Brodsky, 278 AD2d 191); and it is further,

Ordered that the order is affirmed insofar as reviewed; and it is further,

Ordered that the respondent is awarded one bill of costs.

The appellants’ brief purports to raise arguments on behalf of the defendants Anna Puma and 2365 A & J Catering, Inc. However, those defendants did not take an appeal and, accordingly, any arguments raised on their behalf have not been considered.

Contrary to the appellants’ assertions, CPLR 3404 does not apply in this instance, as no note of issue was filed (see, Perez v Gerardi, 285 AD2d 454; Lopez v Imperial Delivery Serv., 282 AD2d 190). In any event, the operation of CPLR 3404 was stayed pending the resolution of a bankruptcy proceeding involving the defendant Philip Puma, which was commenced in 1990 and was pending in 1995 when this action was allegedly dismissed (see, 11 USC § 362; Klein v Rauschman, 67 AD2d 902).

The appellants’ remaining contentions are without merit. O’Brien, J. P., Krausman, Florio and Luciano, JJ., concur.