Abasciano v. Dandrea

• Decision Date: 29 April 2011
• Citation: 2011 N.Y. Slip Op. 03422,83 A.D.3d 1542,924 N.Y.S.2d 696
• Parties: Frank ABASCIANO, Plaintiff–Respondent,v.Patrick DANDREA, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 1542

924 N.Y.S.2d 696

2011 N.Y. Slip Op. 03422

Frank ABASCIANO, Plaintiff–Respondent,

v.Patrick DANDREA, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

April 29, 2011.

Muldoon & Getz, Rochester (Martin P. McCarthy, II, of Counsel), for Defendant–Appellant.Harris, Chesworth, O'Brien, Johnstone, Welch & Leone, LLP, Rochester (Robert S. Leni of Counsel), for Plaintiff–Respondent.PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND GREEN, JJ.MEMORANDUM:

On appeal from an order directing the sale of partnership property, defendant's sole contention is that plaintiff improperly commenced this partnership dissolution action by failing to file a summons, thereby depriving Supreme Court of jurisdiction. We conclude that defendant's jurisdictional challenge is not properly before us, and we therefore dismiss the appeal.

“The power of an appellate court to review a judgment [or order] is subject to an appeal being timely taken” ( Hecht v. City of New York, 60 N.Y.2d 57, 61, 467 N.Y.S.2d 187, 454 N.E.2d 527; see Kline v. Town of Guilderland, 289 A.D.2d 741, 742, 734 N.Y.S.2d 333). CPLR 5501(a)(1) provides that “[a]n appeal from a final judgment brings up for review ... any non-final judgment or order which necessarily affects the final judgment” ( [emphasis added]; see Weierheiser v. Hermitage Ins. Co., 17 A.D.3d 1133, 1134, 795 N.Y.S.2d 807). However, an appeal from a nonfinal order or an intermediate order does not bring up for review prior nonfinal orders ( see Meltzer v. Meltzer, 63 A.D.3d 703, 879 N.Y.S.2d 722; Joseph Davis Indus. Servs. v. Sicoli & Massaro, 289 A.D.2d 984, 734 N.Y.S.2d 795; Baker v. Shepard, 276 A.D.2d 873, 874, 715 N.Y.S.2d 83). For purposes of CPLR 5501(a)(1), “a final order is one that disposes of all causes of action between the parties in an action or proceeding and leaves nothing for further judicial action apart from mere ministerial matters” ( Town of Coeymans v. Malphrus, 252 A.D.2d 874, 875, 676 N.Y.S.2d 347).

Plaintiff commenced this action by order to show cause and verified complaint in November 2008. Shortly thereafter, defendant cross-moved for, inter alia, dismissal of the action based upon plaintiff's failure to file and serve a summons with the verified complaint, contending that such failure deprived the court of jurisdiction. Specifically, defendant contended that “[p]laintiff has failed to secure the jurisdiction of this Court by properly commencing an action.” The court issued an order in December 2008 that did not address defendant's cross motion, and thus the cross motion was deemed denied ( see Brown v. U.S. Vanadium Corp., 198 A.D.2d 863, 604 N.Y.S.2d 432). Defendant did not take an appeal from that order.

In response to a motion in March 2009 by plaintiff seeking the appointment of an accountant pursuant to Partnership Law § 74 to conduct an accounting “for the purpose of winding up the parties' dissolved partnership,” defendant cross-moved for, inter alia, “a specific finding from the Court as to whether it finds that the papers filed previously are, in fact, a Verified Complaint and if so, find whether a Summons was filed and served. If the Court so finds, the cross motion is to dismiss this action for lack of proper jurisdiction and service.” Defendant sought various forms of relief in the alternative. In an April 2009 order, the court granted plaintiff's motion and denied defendant'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 for dismissal of this action due to the indicated absence of a summons, said previous application was deemed 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 the dissolution 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's motion for leave to reargue/renew with respect to a March 2010 order concerning the appointment of the accountant and the results of the accounting and granted plaintiff's cross motion, 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 this action was not properly...