        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

485
CA 13-00387
PRESENT: SMITH, J.P., CARNI, SCONIERS, AND VALENTINO, JJ.


SUSAN GATELY, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

JAMES GATELY, DEFENDANT-APPELLANT.
---------------------------------------
THOMAS A. PALMER, RECEIVER, RESPONDENT.
(APPEAL NO. 1.)


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR
DEFENDANT-APPELLANT.

DAMON MOREY LLP, BUFFALO (MICHAEL J. WILLETT OF COUNSEL), AND J. ADAMS
& ASSOCIATES, PLLC, WILLIAMSVILLE, FOR PLAINTIFF-RESPONDENT.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John F.
O’Donnell, J.), entered April 3, 2012. The order approved the sales
contract for real property located at 8 Mountainview, Ellicottville.

     It is hereby ORDERED that said appeal is unanimously dismissed
without costs.

     Memorandum: In appeal Nos. 1 and 2, defendant appeals from
orders that, respectively, approved a contract to sell the parties’
real property and vacated a notice of pendency filed by defendant
against plaintiff and the receiver. Defendant contends in appeal No.
1 that Supreme Court abused its discretion in approving the sale of
the parties’ real property. We note, however, that the property in
question was sold before defendant perfected his appeal, and he did
not seek a stay of the order approving the sale (see Gabriel v Prime,
30 AD3d 955, 956). “[U]nder the well-established doctrine of merger,
provisions in a contract for the sale of real estate merge into the
deed and are thereby extinguished absent the parties’ demonstrated
intent that a provision shall survive transfer of title” (Matter of
Mattar v Heckl, 77 AD3d 1390, 1391 [internal quotation marks
omitted]). Thus, the contract of sale has merged into the deed, and
the contract may not be rescinded (see id.). “Where, as here, ‘the
rights of the parties cannot be affected by the determination of [the]
appeal,’ the appeal must be dismissed as moot” (id.; see generally
Matter of Pray v Clinton County, 101 AD3d 1567, 1567).
                                 -2-                           485
                                                         CA 13-00387

     Defendant contends in appeal No. 2 that the court erred in
vacating his notice of pendency. In view of our determination in
appeal No. 1, we likewise dismiss the appeal from the order in appeal
No. 2 (see Mattar, 77 AD3d at 1391). We note in any event that
defendant’s “ ‘claim that [the] real property is a marital asset
subject to distribution does not, by itself, establish grounds for a
[notice of pendency]’ . . . , inasmuch as a claim for equitable
distribution will not necessarily affect the title to, or possession,
use or enjoyment of, the subject real property” (Jolley v Lando, 99
AD3d 1256, 1256; see Fakiris v Fakiris, 177 AD2d 540, 543).




Entered:   May 2, 2014                          Frances E. Cafarell
                                                Clerk of the Court
