Rupert v. Rupert

764 N.E.2d 954, 97 N.Y.2d 661, 738 N.Y.S.2d 654, 2001 N.Y. LEXIS 3750

Opinions

OPINION OF THE COURT

Memorandum.

The appeal should be dismissed, without costs.

Defendant husband appeals to this Court from the final judgment of Supreme Court to bring up for review a prior nonfinal Appellate Division order (245 AD2d 1139 [1997]), which held an antenuptial agreement and two other documents amending that agreement valid and enforceable as one integrated agreement and remitted the case to Supreme Court, indicating that “further proceedings before the court should include the identity and value of the property obtained by the parties after the marriage” (id., at 1142). Upon remand from the Appellate Division, Supreme Court resolved the financial issues, and further determined that the case could have been decided on a theory of promissory estoppel with the same result, thereby recognizing an alternative basis to enforce the terms contained in the agreement and amending documents.

On an appeal taken to this Court from a final judgment of Supreme Court to bring up for review a prior nonfinal Appellate Division order, the Appellate Division order must necessarily affect the final judgment (see, CPLR 5602 [a] [1] [ii]). Inasmuch as the final judgment of Supreme Court rests on an alternative basis for the result reached by the Appellate Division, the Appellate Division’s nonfinal order does not necessarily affect the final determination. Accordingly, the appeal must be dismissed. We note that the dismissal of this appeal does not constitute an adjudication on the merits or an affirmance of the Appellate Division order.