Matter of Donohue v. Nassau County Interim Fin. Auth.

142 A.D.3d 1020, 37 N.Y.S.3d 448

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 14, 2016
• Docket: 2014-04924
• Status: Published

Opinion

In a proceeding, inter alia, pursuant to CPLR article 78 to annul and vacate certain resolutions enacted by the Nassau County Interim Finance Authority and to compel compliance with applicable collective bargaining agreements, (1) the petitioners appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Diamond, J.), entered March 13, 2014, as granted those branches of the motion of the Nassau County Interim Finance Authority, and its Chairman and Directors, and the separate motion of Edward Mangano, in his capacity as County Executive of Nassau County, George Maragos, in his official capacity as Nassau County Comptroller, and the County of Nassau which were to dismiss the proceeding insofar as asserted against each of them, and Edward Mangano, in his official capacity as County Executive of Nassau County, George Maragos, in his official capacity as Nassau County Comptroller, and the County of Nassau cross-appeal from so much of the same order as, in effect, denied that branch of their motion which was to dismiss the proceeding insofar as asserted against them as time-barred, and (2) the petitioners appeal from a judgment of the same court entered April 15, 2014, which, upon the order, in effect, denied the petition and dismissed the proceeding, and Edward Mangano, in his official capacity as County Executive of Nassau County, George Maragos, in his official capacity as Nassau County Comptroller, and the County of Nassau cross-appeal from so much of the same judgment as, upon the order, in effect, failed to dismiss the proceeding on the ground that it was time-barred.

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

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

Ordered that one bill of costs is awarded to the respondents-respondents-appellants.

The appeal and cross appeal from the intermediate order must be dismissed since an intermediate order made in a CPLR article 78 proceeding is not appealable as of right (see CPLR 5701 [b] [1]; Matter of Smyles v Board of Trustees of Inc. Vil. of Mineola, 120 AD3d 822 [2014]), and any possibility of taking a direct appeal or cross appeal therefrom terminated with the entry of the judgment in the proceeding (see Matter of Aho, 39 NY2d 241, 248 [1976]; Matter of Westchester County Correction Officers Benevolent Assn., Inc. v County of Westchester, 71 AD3d 1040 [2010]). The issues raised on the appeal and cross appeal from the order are brought up for review and have been considered on the appeal and cross appeal from the judgment (see CPLR 5501 [a] [1]).

For the reasons stated in our decision and order on a related appeal (Matter of Carver v Nassau County Interim Fin. Auth., 142 AD3d 1003 [2d Dept 2016] [decided herewith]), the Supreme Court properly, in effect, denied the petition and dismissed the proceeding pursuant to CPLR 3211 (a) and 7804 (f).

The contention raised on the cross appeal, that the proceeding was time-barred, also is without merit for the reasons set forth in our determination on that related appeal (Matter of Carver v Nassau County Interim Fin. Auth., 142 AD3d 1003 [2d Dept 2016] [decided herewith]).

Dillon, J.P., Chambers, Hall and Duffy, JJ., concur.