Chase Manhattan Bank, Nat. Ass'n v. Roberts & Roberts, Inc.
| Decision Date | 04 May 1978 |
| Citation | 63 A.D.2d 566,404 N.Y.S.2d 608 |
| Parties | The CHASE MANHATTAN BANK, NATIONAL ASSOCIATION, Plaintiff-Respondent, v. ROBERTS & ROBERTS, INC., et al., Defendants, and Anthony J. Tangredi, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
J. V. Hamilton, Jr., for plaintiff-respondent.
B. A. Burns, New York City, for defendant-appellant.
Before MURPHY, P. J., and FEIN, LANE, SANDLER and SULLIVAN, JJ.
The appeal from the order of the Supreme Court, New York County, entered September 9, 1976, granting summary judgment to the plaintiff, Chase Manhattan Bank, is deemed an appeal from the judgment of the Supreme Court, New York County, entered October 13, 1976, in favor of the Chase Manhattan Bank.
Judgment, Supreme Court, New York County, entered October 13, 1976, granting summary judgment in favor of the plaintiff, unanimously affirmed with $60 costs and disbursements of this appeal payable to respondent by appellant.
Appeal from the order of the Supreme Court, New York County, entered October 18, 1976, declining to sign defendant's order to show cause requesting reargument, unanimously dismissed, without costs or disbursements, as nonappealable (Sklan v. Sklan, 29 A.D.2d 526, 285 N.Y.S.2d 367; Alexandre v. Davis, 57 A.D.2d 764, 394 N.Y.S.2d 559).
The individual, Anthony J. Tangredi, concededly signed an unconditional continuing guaranty, and the papers submitted to Special Term raise no material factual issues. The granting of summary judgment to Chase Manhattan Bank was therefore appropriate. The Court takes this opportunity to emphasize a procedural point. Generally, when an appeal from an intermediate order is perfected together with an appeal from a final judgment, the appeal from the intermediate order must be dismissed and any error alleged, to the extent that it affects the final judgment, may be reviewed upon the appeal from the final judgment (CPLR 5501(a)(1); Matter of N. Y. Life Ins. v. Galvin, 41 A.D.2d 83, 86, 340 N.Y.S.2d 822, 824; Champ. Int. v. Dependable Ind., 47 A.D.2d 473, 475, 367 N.Y.S.2d 273, 274; Gruen v. Gruen, 59 A.D.2d 840, 399 N.Y.S.2d 4).
As an implicit corollary to this principle, we note that when an appeal is taken from an order and during the pendency of the appeal a final judgment is entered in the same action, the appeal from the order must fall and review may only be had upon appeal from the final judgment (Jema Properties v. McLeod, 51 A.D.2d 702, 388 N.Y.S.2d 872 (1st Dept.)). This rule obtains even when the judgment subsequently entered...
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