Maksymowicz v. Weisman

114 A.D.3d 484, 979 N.Y.S.2d 805

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 13, 2014
• Status: Published

Opinion

Appeal from order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered on or about December 14, 2012, which declined to sign an order to show cause, unanimously dismissed, without costs, as taken from a nonappealable order.

Supreme Court’s refusal to sign the subject order to show cause is not appealable (CPLR 5701 [a] [2]; see e.g. Naval v American Arbitration Assn., 83 AD3d 423 [1st Dept 2011]).

In any event, the court properly declined to sign the order since petitioner sought to enforce a prior order, dated February 2, 2006, which contains no directive that petitioner may enforce. Rather, the order merely approved the sale of the property at issue by the coguardian of the owner and guardian of the property. It did not require that the property be sold, nor did it recognize that petitioner was entitled to proceeds from the sale of that property. Furthermore, the court correctly observed that petitioner is collaterally estopped from raising his arguments in light of an order, in related proceedings, in which the court canceled and discharged petitioner’s mechanic’s lien on the same property; that order was affirmed by this Court (see Weisman v Maksymowicz, 109 AD3d 768 [1st Dept 2013]). Concur— Gonzalez, EJ., Sweeny, Richter, Manzanet-Daniels and Clark, JJ.