Rubiano v. Kelly
| Court | New York Supreme Court Appellate Division |
| Citation | 26 N.Y.S.3d 106,136 A.D.3d 780 |
| Parties | Frank RUBIANO, appellant, v. Joseph KELLY, et al., respondents. |
| Decision Date | 10 February 2016 |
136 A.D.3d 780
26 N.Y.S.3d 106
Frank RUBIANO, appellant,
v.
Joseph KELLY, et al., respondents.
Supreme Court, Appellate Division, Second Department, New York.
Feb. 10, 2016.
John Braslow, North Babylon, N.Y. (Louis J. Capasso of counsel), for appellant.
Bondi Iovino & Fusco, Garden City, N.Y. (Desiree Lovell Fusco of counsel), for respondents.
WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, JOSEPH J. MALTESE, and BETSY BARROS, JJ.
In an action to recover the down payment on a contract for the sale of real property, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (McCormack, J.), dated June 25, 2014, as denied that
branch of the defendants' motion which was for an award of an attorney's fee to the defendant Victoria Kaplan, with leave to "re-file," and denied those branches of his motion which were for summary judgment on the complaint insofar as asserted against the defendant Joseph Kelly, pursuant to CPLR 3211(a)(5) to dismiss the defendants' counterclaims, and pursuant to CPLR 3211(b) to dismiss the defendants' first and third affirmative defenses.
ORDERED that the appeal from so much of the order as denied that branch of the defendants' motion which was for an award of an attorney's fee to the defendant Victoria Kaplan, with leave to "re-file," is dismissed, as the appellant is not aggrieved by that portion of the order; and it is further,
ORDERED that the order is affirmed insofar as reviewed; and it is further,
ORDERED that, upon searching the record, summary judgment is awarded to the defendant Joseph Kelly dismissing the complaint insofar as asserted against him; and it is further,
ORDERED that one bill of costs is awarded to the defendants.
In February 2013, the plaintiff entered into a contract to purchase a parcel of real property from the defendant Joseph Kelly. The plaintiff and Kelly never closed on the contract, and in June of 2013 the plaintiff commenced this action to recover his down payment against Kelly and his attorney, Victoria Kaplan. The defendants moved, inter alia, for an award of an attorney's fee to Kaplan, and the plaintiff cross-moved, among other things, for summary judgment on the complaint insofar as asserted against Kelly, pursuant to CPLR 3211(a)(5) to dismiss the defendants' counterclaims, and pursuant to CPLR 3211(b) to dismiss the defendants' first and third affirmative defenses. The Supreme Court denied the branch of the defendants' motion which was for an award of an attorney's fee to Kaplan, with leave to "re-file," and denied the relevant branches of the plaintiff's cross motion. The plaintiff appeals.
The appeal from so much of the order as denied, with leave to "re-file," that branch of the defendants' motion which was for an award an of attorney's fee to Kaplan must be dismissed, as the plaintiff is not aggrieved by that portion of the order (...
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