Phillips v. Phillips

248 A.D.2d 453, 669 N.Y.S.2d 516, 1998 N.Y. App. Div. LEXIS 2279

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 9, 1998
• Status: Published

Opinion

—In an action to foreclose a mortgage, the defendant Dale E. Phillips appeals from (1) an order of the Supreme Court, Westchester County (Donovan, J.), entered October 25, 1996, which granted the plaintiffs motion for summary judgment, and (2) a judgment of foreclosure and sale of the same court entered January 27, 1997, as amended February 10, 1997. The notice of appeal from the order entered October 25, 1996, is deemed a notice of appeal from the judgment entered January 27, 1997, as amended February 10, 1997 (see, CPLR 5501 [c]).

Ordered that the appeal from the order entered October 25, 1996, is dismissed; and it is further,

Ordered that the judgment, as amended, is affirmed, with 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 the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in dismissing without prejudice the counterclaims interposed by the appellant, which relate to a divorce judgment between the parties (see generally, Braman v Rochester Gas & Elec. Corp., 54 AD2d 174).

The appellant’s remaining contentions are without merit.

Miller, J. P., Altman, Krausman and Luciano, JJ., concur.