Paul Revere Life Ins. Co. v. Campagna
| Decision Date | 08 November 1996 |
| Citation | 233 A.D.2d 954,649 N.Y.S.2d 113 |
| Parties | PAUL REVERE LIFE INSURANCE COMPANY, Appellant, v. Kenneth CAMPAGNA, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Bond, Schoeneck & King, L.L.P. by Jonathan Fellows, Syracuse, for Appellant.
Culley, Marks, Tanenbaum, Reifsteck, Potter & Capell by Paul Marasco, Rochester, for Respondent.
Before DENMAN, P.J., and FALLON, WESLEY, BALIO and DAVIS, JJ.
Plaintiff appeals from an order denying its motion pursuant to CPLR 4404(b) to vacate a decision awarding attorney's fees to defendant and directing defendant's counsel to submit an affirmation of services. Prior to argument of the motion, defendant's counsel submitted an affidavit of services, and Supreme Court granted judgment to defendant for the entire amount of attorney's fees requested. This Court dismissed plaintiff's appeal from the judgment as untimely. Two months after signing the judgment, the court denied plaintiff's motion.
The dismissal of plaintiff's appeal from the judgment bars this appeal because the issues raised herein were, or could have been, raised on the prior appeal (see, Bray v. Cox, 38 N.Y.2d 350, 353, 379 N.Y.S.2d 803, 342 N.E.2d 575; KTM Partnership-I v. 160 W. 86th St. Partners, 169 A.D.2d 462, 564 N.Y.S.2d 159). Although the order on appeal was entered after entry of the final judgment, that order is subsumed in the judgment and the right to appeal directly therefrom terminated (see, Dietz Intl. Pub. Adjusters v. Frankart Distribs., 157 A.D.2d 625, 551 N.Y.S.2d 776).
Appeal unanimously dismissed without costs.
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...on the prior appeal ( see generally Bray v. Cox, 38 N.Y.2d 350, 353–354, 379 N.Y.S.2d 803, 342 N.E.2d 575; Paul Revere Life Ins. Co. v. Campagna, 233 A.D.2d 954, 649 N.Y.S.2d 113), “an appellate court has the authority to entertain a second appeal in the exercise of its discretion, even whe......
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Taylor v. Birdsong
...606 N.E.2d 1369 [1992], rearg. denied 81 N.Y.2d 835, 595 N.Y.S.2d 397, 611 N.E.2d 298 [1993] ; Paul Revere Life Ins. Co. v. Campagna, 233 A.D.2d 954, 955, 649 N.Y.S.2d 113 [4th Dept. 1996] ). We note that, even if we did not dismiss the appeal on that ground, we would be unable to address t......
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Knapp v. Finger Lakes NY, Inc.
...an order is "subsumed in the judgment and the right to appeal directly therefrom terminated" ( Paul Revere Life Ins. Co. v. Campagna , 233 A.D.2d 954, 955, 649 N.Y.S.2d 113 [4th Dept. 1996] ; see Taylor v. Birdsong , 158 A.D.3d 1281, 1282, 68 N.Y.S.3d 363 [4th Dept. 2018] ). We now conclude......
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