| B & N Props., LLC v Elmar Assoc., LLC |
| 2008 NY Slip Op 04631 [51 AD3d 831] |
| May 20, 2008 |
| Appellate Division, Second Department |
| B & N Properties, LLC, Appellant-Respondent, v ElmarAssociates, LLC, et al., Respondents-Appellants, et al., Defendants. (Action No. 1.) CentralEquities Credit Corp., Plaintiff, v B & N Properties, LLC, Appellant-Respondent, and ElmarAssociates, LLC, et al., Respondents-Appellants, et al., Defendants. (Action No. 2.) ElmarAssociates, LLC, et al., Respondents-Appellants, v B & N Properties, LLC,Appellant-Respondent, et al., Defendants. (Action No. 3.) (And AnotherTitle.) |
—[*1] Certilman Balin Adler & Hyman, LLP, East Meadow, N.Y. (Patrick McCormick and StaceyRamis Nigro of counsel), for respondents-appellants.
In related actions, inter alia, to recover damages for breach of contract and for a judgmentdeclaring the rights of the parties in certain escrowed funds, B & N Properties, LLC, appeals, aslimited by its brief, from so much of an order of the Supreme Court, Kings County (Jackson, J.),dated March 1, 2007, as denied its cross motion for summary judgment dismissing thecounterclaims and cross claims asserted against it by Elmar Associates, LLC, in action Nos. 1and 2, respectively, [*2]and dismissing the complaint insofar asasserted against it in action No. 3, and Elmar Associates, LLC, Martin B. Gross, Elliot S. Gross,Gross & Gross, LLP, and Harry S. Katz cross-appeal, as limited by their notice of appeal andbrief, from so much of the same order as stated that the United States Bankruptcy Court retainedjurisdiction over the distribution of the escrowed funds.
Ordered that the cross appeal is dismissed; and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the respondents-appellants.
The respondents-appellants concede that the statement they are seeking to challenge on theircross appeal is dicta. Since this is the only issue raised by the respondents-appellants, the crossappeal must be dismissed, as no appeal lies from dicta (see Companion Life Ins. Co. of N.Y. v All State Abstract Corp., 35AD3d 518 [2006]; Edge Mgt. Consulting v Irmas, 306 AD2d 69 [2003]).
The Supreme Court denied the appellant-respondent's cross motion for summary judgmentdismissing the cross claims and counterclaims asserted against it by Elmar Associates, LLC, inaction Nos. 1 and 2, respectively, and dismissing the complaint insofar as asserted against it inaction No. 3. We affirm, but for a reason different from that stated by the Supreme Court. As therespondents-appellants argue, the cross motion should have been denied as having been made inviolation of the rule against successive motions for summary judgment (see Selletti v Liotti, 45 AD3d 669[2007]; Williams v City of White Plains,6 AD3d 609 [2004]). In any event, we note that the Supreme Court correctly determinedthat there are triable issues of fact which preclude the granting of summary judgment (see Capuano v Platzner Intl. Group, 5AD3d 620 [2004]; Davidson Metals Corp. v Marlo Dev. Co., 262 AD2d 599[1999]).
Motion by the appellant-respondent on an appeal and cross appeal from an order of theSupreme Court, Kings County, dated March 1, 2007, to strike point II of the reply brief of therespondents-appellants. By decision and order of this Court dated February 11, 2008, the motionwas held in abeyance and referred to the panel of Justices hearing the appeal and cross appeal fordetermination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon the argument of the appeal and cross appeal, it is
Ordered that the motion is granted, and point II of the reply brief of therespondents-appellants is stricken and has not been considered on the appeal. Florio, J.P., Miller,Dillon and McCarthy, JJ., concur.