Mascoli v. Mascoli

149 A.D.2d 480, 540 N.Y.S.2d 714, 1989 N.Y. App. Div. LEXIS 4642

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 10, 1989
• Status: Published

Opinion

— In an action to recover arrears due under the terms of a separation agreement between the parties, the defendant appeals from (1) an order of the Supreme Court, Westchester County (Buell, J.), entered December 15, 1987, which granted the plaintiff’s motion for summary judgment and denied his cross motion, inter alia, to dismiss the complaint for failure to state a cause of action, and (2) a judgment of the same court, entered December 29, 1987, which is in favor of the plaintiff and against him in the principal sum of $3,167.47.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that the plaintiff is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).

This is the defendant’s third attempt to reverse a finding that he violated the terms of the parties’ separation agreement (see, Mascoli v Mascoli, 129 AD2d 778). Once again, we find that the defendant has failed to set forth facts sufficient to require a trial (see, CPLR 3212 [b]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065) and reject the defendant’s contentions as totally lacking merit. Thompson, J. P., Bracken, Brown and Rubin, JJ., concur.