

Katz v Beil (2016 NY Slip Op 05976)





Katz v Beil


2016 NY Slip Op 05976


Decided on September 14, 2016


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on September 14, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

MARK C. DILLON, J.P.
SHERI S. ROMAN
ROBERT J. MILLER
HECTOR D. LASALLE, JJ.


2013-10614
2013-10615
 (Index No. 600510/11)

[*1]Stephen Katz, et al., appellants, 
vBarry J. Beil, et al., respondents.


Certilman Balin Adler & Hyman, LLP, East Meadow, NY (John H. Gionis, Donna-Marie Korth, and Tony G. Dulgerian of counsel), for appellants.
Meister Seelig & Fein LLP, New York, NY (Mitchell Schuster and Kevin Fritz of counsel), for respondents Barry J. Beil and Stanley Pine.
Lewis Brisbois Bisgaard & Smith LLP, New York, NY (Mark K. Anesh and Philip J. Furia of counsel), for respondents Finkle Ross & Rost, LLP, and Finkle & Ross, LLP.

DECISION & ORDER
In an action, inter alia, to recover damages for breach of fiduciary duty, the plaintiffs appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Nassau County (Driscoll, J.), entered October 23, 2013, as directed a hearing on certain branches of their motion which were pursuant to CPLR 3025(b) for leave to amend the amended complaint, and (2) so much of an order of the same court entered November 4, 2013, as denied certain branches of their motion which were pursuant to CPLR 3025(b) for leave to amend the amended complaint.
ORDERED that the appeal from the order entered October 23, 2013, is dismissed, without costs or disbursements, as no appeal lies as of right from an order which directs a hearing to aid in the disposition of a motion (see Serraro v Staropoli, 94 AD3d 1083, 1084), and we decline to grant leave to appeal in view of the fact that a judgment has been entered in the action (see Willoughby Rehabilitation & Health Care Ctr., LLC v Webster, 134 AD3d 811, 812); and it is further,
ORDERED that the appeal from the order entered November 4, 2013, is dismissed, without costs or disbursements.
The appeal from the order entered November 4, 2013, must be dismissed because the right of direct appeal therefrom terminated with the entry of a judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeals from the orders entered October 23, 2013, and November 4, 2013, are brought up for review and have been considered on the companion appeal from the judgment (see CPLR 5501[a]; Katz v Beil, _____ AD3d _____ [Appellate Division Docket No. 2014-07546; decided herewith]).
DILLON, J.P., ROMAN, MILLER and LASALLE, JJ., concur.

2013-10614	DECISION & ORDER ON MOTION
2013-10615
Stephen Katz, et al., appellants, v Barry J. Beil, et al.,
respondents.
(Index No. 600510/11)

Motion by the respondents Barry J. Beil and Stanley Pine on appeals from two orders of the Supreme Court, Nassau County, entered October 23, 2013, and November 4, 2013, respectively, to dismiss the appeal from the order entered November 4, 2013, on the ground that it has been rendered academic. By decision and order on motion of this Court dated June 11, 2014, the motion was held in abeyance and referred to the Justices hearing the appeals for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeals, it is
ORDERED that the motion is denied as academic in light of our determination of the appeal from the order entered November 4, 2013 (see Katz v Beil, _____ AD3d _____ [decided herewith]).
DILLON, J.P., ROMAN, MILLER and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


