LDV Enterprises Inc. v. Puma

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: O'BRIEN
• Citation: LDV Enterprises Inc. v. Puma, 728 N.Y.S.2d 671 (N.Y. App. Div. 2001)
• Decision Date: 05 January 2001
• Parties: (A.D. 2 Dept. 2001) LDV ENTERPRISES, INC., RESPONDENT, v. PHILIP PUMA, ET AL., APPELLANTS, ET AL., DEFENDANTS. 1999-09948 : SECOND JUDICIAL DEPARTMENT Submitted -

Page 671

728 N.Y.S.2d 671 (A.D. 2 Dept. 2001)

LDV ENTERPRISES, INC., RESPONDENT, v. PHILIP PUMA, ET AL., APPELLANTS, ET AL., DEFENDANTS.

1999-09948

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

Submitted - January 5, 2001

July 30, 2001

Anthony J. Sabino, Bethpage, N.Y., for appellants and for defendants Anna Puma and 2365 A & J Catering, Inc.

Russ & Russ, P.C. (Ira Levine of counsel), Massapequa, N.Y., for respondent.

In an action to foreclose a mortgage, the defendants Philip Puma, Rose Puma, and Brikar Realty, Ltd., appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Gowan, J.), dated August 31, 1999, as granted those branches of the plaintiff's motion which were to restore the action to the trial calendar and to add Anna Puma and 2365 A & J Catering, Inc., as additional defendants.

ORDERED that the appeal from so much of the order as granted that branch of the plaintiff's motion which was to add Anna Puma and 2365 A & J Catering, Inc., as additional defendants is dismissed, as the appellants are not aggrieved by that portion of the order (see, CPLR 5511; Coffey v Brodsky, 278 A.D.2d 191); and it is further,

ORDERED that the order is affirmed insofar as reviewed; and it is further,

ORDERED that the respondent is awarded one bill of costs.

The appellants' brief purports to raise arguments on behalf of the defendants Anna Puma and 2365 A & J Catering, Inc. However, those defendants did not take an appeal and, accordingly, any arguments raised on their behalf have not been considered.

Contrary to the appellants' assertions, CPLR 3404 does not apply in this instance, as no note of issue was filed (see, Perez v Gerardi, A.D.2d 727 N.Y.S.2d 883; Lopez v Imperial Delivery Serv., A.D.2d 725 N.Y.S.2d 57). In any event, the operation of CPLR 3404...