

Livathinos v Vaughan (2017 NY Slip Op 00920)





Livathinos v Vaughan


2017 NY Slip Op 00920


Decided on February 7, 2017


Appellate Division, First 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 February 7, 2017

Tom, J.P., Renwick, Saxe, Feinman, Gesmer, JJ.


106791/08 -2998 2997 2996

[*1]Spyridon Livathinos, Plaintiff-Appellant,
vRoberta F. Vaughan, etc., et al., Defendants-Respondents.


Goldberg & Lasson, Brooklyn (Donald Drew Goldberg of counsel), for appellant.
Forchelli, Curto, Deegan, Schwartz, Mineo & Terrana, LLP, Uniondale (Jeffrey G. Stark of counsel), for Roberta F. Vaughan and 287 Realty Corp., respondents.
Ackerman, Levine, Cullen, Brickman & Limmer, LLP, Great Neck (John M. Brickman of counsel), for James S. Vaughan, respondent.

Appeal from judgment, Supreme Court, New York County (Eileen A. Rakower, J.), entered October 26, 2015, awarding defendants costs and disbursements, and dismissing plaintiff's consolidated amended complaint with prejudice pursuant to an order, same court and Justice, entered September 9, 2015, which, among other things, sua sponte dismissed the consolidated amended complaint, unanimously dismissed, without costs, as taken from a nonappealable paper. Appeal from aforementioned order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment and as taken from a nonappealable order. Appeal from order, same court and Justice, entered September 9, 2015, which granted defendants' motion to, among other things, release escrow funds to defendant Trinity Stewart Associates, Inc., unanimously dismissed, without costs, as moot.
There is no right to appeal from a judgment that is based upon a sua sponte order; nor is there a right to appeal from the sua sponte order itself (see Hladun-Goldmann v Rentsch Assoc., 8 AD3d 73, 73 [1st Dept 2004]). We decline to treat plaintiff's notice of appeal as an application for leave to appeal (see CPLR 5701[c]).
Given the foregoing determination, plaintiff's appeal from the order granting defendants' motion to release the escrow funds is moot.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 7, 2017
CLERK


