Lauren A. Katz v. Joseph A. DePaola III

Summary

The Appellate Division, Second Department, dismissed the appeal from an order determining entitlement to costs because no appeal lay as of right and any direct appeal terminated upon entry of judgment. It affirmed the judgment awarding the defendant $2,036.83 in costs and disbursements, holding that no automatic stay applied because the plaintiff had filed a motion rather than a notice of appeal.

Holdings

1. The appeal from the order must be dismissed because no appeal lies as of right from an order that does not decide a motion made on notice, and any possibility of a direct appeal from the order ended when judgment was entered.
2. The judgment awarding the defendant costs and disbursements was properly issued because the plaintiff's motion for leave to reargue was not an appeal and did not trigger the automatic stay under CPLR 5519(a).
3. The plaintiff's remaining contention was not properly before the Appellate Division because it was based on matter dehors the record.

Questions Presented

1. Whether the appeal from the April 4, 2023 order awarding costs and disbursements had to be dismissed because no appeal lies as of right from an order that did not decide a motion made on notice and any direct appeal terminated upon entry of judgment.
2. Whether the judgment awarding the defendant $2,036.83 in costs and disbursements was prematurely entered while the plaintiff's motion for leave to reargue or seek leave to appeal was pending.
3. Whether the plaintiff's remaining contention could be considered when it relied on matter dehors the record.

Disposition

affirmed