| Hawkins-Bond v Konefsky |
| 2008 NY Slip Op 01109 [48 AD3d 417] |
| February 5, 2008 |
| Appellate Division, Second Department |
| Portia Hawkins-Bond, Respondent, v Albert Konefsky,Appellant. |
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In an action pursuant to RPAPL article 15 to establish title to a parcel of real property byadverse possession, the defendant appeals, as limited by his notice of appeal and brief, from somuch of an order of the Supreme Court, Kings County (F. Rivera, J.), dated July 18, 2005, as,upon granting that branch of his motion which was for summary judgment dismissing thecomplaint, denied that branch of his motion which was to sever his first, fourth, and fifthcounterclaims as moot.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thatbranch of the defendant's motion which was to sever his first, fourth, and fifth counterclaims isgranted.
"A cause of action contained in a counterclaim . . . shall be treated, as far aspracticable, as if it were contained in a complaint" (CPLR 3019 [d]). Thus, dismissal of theplaintiff's complaint did not, in itself, extinguish the defendant's counterclaims (seeCPLR 3019 [d]; Ballen v Aero Mayflower Tr. Co., 144 AD2d 407, 410 [1988]).Accordingly, the Supreme Court should have granted that branch of the defendant's motionwhich was to sever his first, fourth, and fifth counterclaims, as they remained viable, independentcauses of action (see Ballen v Aero Mayflower Tr. Co., 144 AD2d at 410).
Contrary to the defendant's contention, however, the appeal from the order dated July 18,2005 does not bring up for review a prior order dated March 4, 2005, pursuant to CPLR 5501 (a)(1), since that provision applies only to appeals from final judgments (see Cardinal Holdingsv Chandre Corp., 302 AD2d 550, 551 [2003]). In this respect, the defendant's contentionsregarding the [*2]dismissal of his second counterclaim and thedenial of his request for an attorney's fee and for sanctions are not properly before this Court.
Finally, we do not reach the defendant's contention concerning that branch of his motionwhich was for partial summary judgment on his second and third counterclaims, as that branch ofthe motion was not addressed by the Supreme Court. Thus, it remains pending and undecided(see Katz v Katz, 68 AD2d 536 [1979]). Spolzino, J.P., Skelos, Florio and Angiolillo, JJ.,concur.