| Abasciano v Dandrea |
| 2011 NY Slip Op 03422 [83 AD3d 1542] |
| April 29, 2011 |
| Appellate Division, Fourth Department |
| —Frank Abasciano, Respondent, v Patrick Dandrea,Appellant. |
—[*1]
Appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), enteredJune 29, 2010. The order, inter alia, denied the motion of defendant for leave to reargue, grantedthe cross motion of plaintiff and directed that the subject property be listed for sale.
It is hereby ordered that said appeal is unanimously dismissed without costs.
Memorandum: On appeal from an order directing the sale of partnership property,defendant's sole contention is that plaintiff improperly commenced this partnership dissolutionaction by failing to file a summons, thereby depriving Supreme Court of jurisdiction. Weconclude that defendant's jurisdictional challenge is not properly before us, and we thereforedismiss the appeal.
"The power of an appellate court to review a judgment [or order] is subject to an appealbeing timely taken" (Hecht v City of New York, 60 NY2d 57, 61 [1983]; see Kline vTown of Guilderland, 289 AD2d 741, 742 [2001]). CPLR 5501 (a) (1) provides that "[a]nappeal from a final judgment brings up for review . . . any non-finaljudgment or order which necessarily affects the final judgment" (emphasis added) (see Weierheiser v Hermitage Ins. Co.,17 AD3d 1133, 1134 [2005]). However, an appeal from a nonfinal order or an intermediateorder does not bring up for review prior nonfinal orders (see Meltzer v Meltzer, 63 AD3d 703 [2009]; Joseph DavisIndus. Servs. v Sicoli & Massaro, 289 AD2d 984 [2001]; Baker v Shepard, 276AD2d 873, 874 [2000]). For purposes of CPLR 5501 (a) (1), "a final order is one that disposes ofall causes of action between the parties in an action or proceeding and leaves nothing for furtherjudicial action apart from mere ministerial matters" (Town of Coeymans v Malphrus, 252AD2d 874, 875 [1998]).
Plaintiff commenced this action by order to show cause and verified complaint in November2008. Shortly thereafter, defendant cross-moved for, inter alia, dismissal of the action based uponplaintiff's failure to file and serve a summons with the verified complaint, contending that suchfailure deprived the court of jurisdiction. Specifically, defendant contended that "[p]laintiff hasfailed to secure [*2]the jurisdiction of this Court by properlycommencing an action." The court issued an order in December 2008 that did not addressdefendant's cross motion, and thus the cross motion was deemed denied (see Brown v U.S.Vanadium Corp., 198 AD2d 863 [1993]). Defendant did not take an appeal from that order.
In response to a motion in March 2009 by plaintiff seeking the appointment of an accountantpursuant to Partnership Law § 74 to conduct an accounting "for the purpose of winding upthe parties' dissolved partnership," defendant cross-moved for, inter alia, "a specific finding fromthe Court as to whether it finds that the papers filed previously are, in fact, a Verified Complaintand if so, find whether a Summons was filed and served. If the Court so finds, the cross motion isto dismiss this action for lack of proper jurisdiction and service." Defendant sought various formsof relief in the alternative. In an April 2009 order, the court granted plaintiff's motion and denieddefendant's cross motion in its entirety. With respect to the summons issue, the court ruled that,"insofar as the Court's prior [2008 order] did not grant the defendant's previous application fordismissal of this action due to the indicated absence of a summons, said previous application wasdeemed denied as a matter of law." Defendant also did not take an appeal from that order.
Thereafter, the parties both filed several motions and cross motions concerning thedissolution and winding up of the partnership, and the court issued at least three further orders.The instant appeal is from an order entered in June 2010 that, inter alia, denied defendant'smotion for leave to reargue/renew with respect to a March 2010 order concerning theappointment of the accountant and the results of the accounting and granted plaintiff's crossmotion, directing that the property and all materials thereon "be listed for sale immediately."
As previously noted, defendant's sole contention on the appeal from that order is that thisaction was not properly commenced and that the court therefore lacks jurisdiction. Althoughdefendant's notice of appeal states that "this appeal is taken from the entirety of th[e] order[entered June 29, 2010], together with all orders previously entered" (emphasis added),we have no authority to review the court's prior orders, including those denying defendant's crossmotions to dismiss the action for failure to file a summons. The order from which the appeal wastaken cannot be deemed a "judgment" to enable us to undertake such a review pursuant to CPLR5501 (a) (1), nor does it appear from the record that a final judgment has been entered (seeBruenn v Pawlowski, 292 AD2d 856 [2002]).
Further, the order before us on this appeal does not constitute a "final order" within themeaning of CPLR 5501 (a) (1), i.e., it "did not dispose of all the factual and legal issues raised inthis action" (Town of Coeymans, 252 AD2d at 875). The complaint contains four causesof action, for dissolution of the partnership, quantum meruit, unjust enrichment, and breach offiduciary duty, while the order before us on this appeal simply directed that "the subjectsubdivision property, with all related building materials located thereon and the correspondingengineering plans, is . . . to be listed for sale immediately."
We thus conclude that the propriety of the orders denying defendant's cross motions fordismissal of the action based upon the failure of plaintiff to file a summons is not properly beforeus because defendant failed to take an appeal from those orders (see Bruenn, 292 AD2dat 857), nor are those orders reviewable on this appeal from a nonfinal order, which does notbring up for review prior nonfinal orders (see Meltzer, 63 AD3d 703; Joseph DavisIndus. Servs., 289 AD2d at 985). Inasmuch as defendant fails to challenge any aspect of theorder on appeal, we dismiss the appeal as abandoned (see Town of Coeymans, 252 AD2dat 875). Present—Smith, J.P., Peradotto, Carni, Sconiers and Green, JJ.