John Eric Jacoby, M.D., P.C. v. Loper Associates, Inc.

• Decision Date: 06 April 1998
• Citation: John Eric Jacoby, M.D., P.C. v. Loper Associates, Inc., 670 N.Y.S.2d 912, 249 A.D.2d 277 (N.Y. App. Div. 1998)
• Parties: , 1998 N.Y. Slip Op. 3158 John Eric JACOBY, M.D., P.C., Respondent, v. LOPER ASSOCIATES, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 912

670 N.Y.S.2d 912

249 A.D.2d 277, 1998 N.Y. Slip Op. 3158

John Eric JACOBY, M.D., P.C., Respondent, v. LOPER ASSOCIATES, INC., Appellant.

Supreme Court, Appellate Division Second Department.

April 6, 1998.

Warren L. Cohen, Tuckahoe, for appellant.

Kurzman & Eisenberg, LLP, White Plains (Richard A. Danzig and Edward Greenbaum, of counsel), for respondent.

Before COPERTINO, J.P. and PIZZUTO, SANTUCCI and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for breach of a lease and wrongful eviction, the defendant appeals from (1) an order of the Supreme Court, Westchester County (Silverman, J.), dated May 28, 1996, which, upon the plaintiff's motion for partial summary judgment and the defendant's cross motion for summary judgment, directed a hearing to resolve the issue of whether the plaintiff's payment of rent arrears was voluntary, (2) a decision of the same court (Wood, J.H.O.), dated March 5, 1997, (3) an order of the same court (Silverman, J.), dated April 14, 1997, which, inter alia, granted the plaintiff's motion for partial summary judgment, and (4) a judgment of the same court (Silverman, J.), also dated April 14, 1997, which awarded the plaintiff the principal sum of $20,883.50.

ORDERED that the appeal from the order dated May 28, 1996, is dismissed; and it is further,

ORDERED that the appeal from the decision dated March 5, 1997, is dismissed, as no appeal lies from a decision (see, Schicchi v. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718); and it is further,

ORDERED that the appeal from the order dated April 14, 1997, is dismissed; and it is further,

ORDERED that the judgment dated April 14, 1997, is affirmed; and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

The order dated May 28, 1996, which directs a judicial hearing to aid in the disposition of the parties' motions, does not decide the motions and does not affect a substantial right (see, CPLR 5701[a][2][v] ), and is, therefore, not appealable as of right.

The appeal from the intermediate order dated April 14, 1997, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501[a][1] ).

On the plaintiff's motion for partial summary judgment, the court directed an immediate hearing before Judicial Hearing Officer Wood on the issue of whether the plaintiff's payment of rent arrears was voluntary. The defendant made no objection to the directed hearing, and fully participated in it. Therefore, the parties charted their own course of procedure and the defendant may not now complain (see, Matter of Greenwald v. Codd, 54 A.D.2d 626, 387 N.Y.S.2d 433; Winter v. Leigh-Mannell, 51 A.D.2d 1012, 381 N.Y.S.2d 112).

The defendant's contention that the Judicial Hearing Officer's factual finding regarding the voluntariness of the plaintiff's payment of rent arrears to the Deputy Marshal of the City of Yonkers was erroneous is without merit. It is well established that issues regarding credibility and the weight of the evidence are primarily matters to be determined by the finder of fact, to which great deference is accorded, as it had the opportunity to view the witnesses, hear their...