Volunteer Fire Ass'n of Tappan, Inc. v. County of Rockland

114 A.D.3d 935, 980 N.Y.S.2d 823

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 2014
• Status: Published

Opinion

In an action, inter alia, for injunctive relief and to recover damages for trespass and private nuisance, the plaintiff and its attorney, nonparty Dwight D. Joyce, appeal from a judgment of the Supreme Court, Rockland County (Walsh II, J.), dated September 24, 2012, which is in favor of the defendant Morano Brothers Corp. and against Dwight D. Joyce in the sum of $3,500, for attorneys’ fees pursuant to 22 NYCRR 130-1.1 for frivolous conduct.

Ordered that the appeal by the plaintiff is dismissed, on the ground that it is not aggrieved by the judgment appealed from (see CPLR 5511; Day v Syosset Cent. Sch. Dist., 105 AD3d 888 [2013]); and it is further,

Ordered that the judgment is affirmed insofar as appealed from by nonparty Dwight D. Joyce; and it is further,

Ordered that one bill of costs is awarded to the defendant Morano Brothers Corp., payable by nonparty Dwight D. Joyce.

Contrary to nonparty Dwight D. Joyce’s contention, he was afforded a sufficient opportunity to be heard (see Levine v Levine, 111 AD3d 898 [2013]; Selletti v Liotti, 104 AD3d 835, 836 [2013]; Telemark Constr. v Fleetwood & Assoc., 236 AD2d 462, 463 [1997]). His contention regarding an alleged failure to comply with 22 NYCRR 202.48 is unpreserved for appellate review (see Peerless Ins. Co. v Casey, 194 AD2d 411, 411-412 [1993]; Martin v Triborough Bridge & Tunnel Auth., 180 AD2d 596 [1992]; PDG Psychological, P.C. v State Farm Mut. Ins. Co., 35 Misc 3d 147[A], 2012 NY Slip Op 51067[U] [2012]). His remaining contentions are without merit. Balkin, J.P, Chambers, Lott and Hinds-Radix, JJ., concur.