| Lennard v Chinkpoo Realty Holding Corp. |
| 2010 NY Slip Op 06781 [76 AD3d 1052] |
| September 28, 2010 |
| Appellate Division, Second Department |
| Margaret Lennard, Appellant, v Chinkpoo Realty HoldingCorp., Also Known as Chinky Poo Realty Holding Corp., et al., Defendants, and JewellProperties, Inc., et al., Respondents. |
—[*1] Jaspan Schlesinger, LLP, Garden City, N.Y. (Michael Permut, Linda S. Agnew, andChristopher D. Palmieri of counsel), for respondents Jewell Properties, Inc., Yaakow Somekh,and Nissim Somekh. Borchert, Genovesi, LaSpina & Landicino, P.C., Whitestone, N.Y. (Helmut Borchert andMark J. Krueger of counsel), for respondent 70 Hanson Place Holdings, LLC.
Motion by the defendant 70 Hanson Place Holdings, LLC, for leave to reargue a decision andorder of this Court dated April 13, 2010, which determined an appeal from an order of theSupreme Court, Kings County (Martin, J.), dated October 28, 2008. Cross motion by the plaintifffor the same relief.
Upon the papers filed in support of the motion and the cross motion and the papers filed inopposition thereto, it is
Ordered that the cross motion is denied; and it is further,
Ordered that the motion is granted and, upon reargument, the decision and order of this Courtdated April 13, 2010 (Lennard vChinkpoo Realty Holding Corp., 72 AD3d 747 [2010]), is recalled and vacated, and thefollowing decision and order is substituted therefor:
In action, inter alia, to quiet title pursuant to RPAPL 1501, the plaintiff appeals from (1) somuch of an order of the Supreme Court, Kings County (Martin, J.), dated October 28, 2008, asgranted the motion of the defendant 70 Hanson Place Holdings, LLC, for summary judgmentdismissing the complaint insofar as asserted against it and quieting title in its favor to realproperty located at 70 Hanson Place in Brooklyn, and granted the separate motion of thedefendants Jewell Properties, Inc., Yaakov Somekh, and Nissim Somekh, and the separatemotion of the defendant NCC Holdings, LLC, for summary judgment dismissing the complaintinsofar as asserted against [*2]them, and (2) a judgment of thesame court dated January 30 2009, which, upon the order, determined that the defendant 70Hanson Place Holdings, LLC, is vested with absolute title in fee to the premises, and, in effect, isin favor of the defendants Jewell Properties, Inc., Yaakov Somekh, Nissim Somekh, 70 HansonPlace Holdings, LLC, and NCC Holdings LLC, and against her, dismissing the complaint. Thenotice of appeal from the order is deemed also to be a notice of appeal from the judgment (seeCPLR 5501 [c]).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondents appearing separately and filingseparate briefs.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The Supreme Court properly awarded the defendants 70 Hanson Place Holdings, LLC,Jewell Properties, Inc., Yaakov Somekh, Nissim Somekh, and NCC Holdings, LLC, summaryjudgment dismissing the complaint insofar as asserted against them and determining that thedefendant 70 Hanson Place Holdings, LLC, was the lawful owner of the property located at 70Hanson Place in Brooklyn (hereinafter the property). The plaintiff asserted in her oppositionpapers that the plaintiff's decedent, William A. Colavolpe, never owned the property;accordingly, the plaintiff was not entitled to the relief requested in the complaint, which was for ajudgment declaring that Colavolpe was the record owner of the property (see RPAPL1501). Furthermore, if, as the plaintiff alleges, Colavolpe did not have an estate or interest in theproperty, the plaintiff did not have standing to maintain this action to quiet title pursuantto RPAPL 1501 (see Soscia vSoscia, 35 AD3d 841, 843 [2006]). Additionally, the plaintiff's claim, raised in heropposition papers, that title of the property should revert back to a nonparty who previouslyowned the property, need not be considered because no such allegation was made in thecomplaint (see Macina v Macina, 60 NY2d 691 [1983]; Gro-Wit Capital, Ltd. v Obigor, LLC,63 AD3d 785 [2009]; Dominguez v Lafayette-Boynton Hous. Corp., 240 AD2d 310,312-313 [1997]).
The plaintiff's remaining contentions are without merit. Fisher, J.P., Covello, Belen and Lott,JJ., concur.