Insurance Co. of Pennsylvania v. Adessie Imports, Ltd.

Dec 15, 2005
Versions:24 A.D.3d 230
806 N.Y.S.2d 486

Appeal from order, Supreme Court, New York County (Walter B. Tolub, J.), entered July 3, 2002, which granted plaintiffs’ motion for leave to renew and reargue and, upon renewal and reargument, adhered to its prior order denying plaintiffs’ application to advance the inquest against defaulting defendant Adessie Imports, Ltd., unanimously dismissed, with separate bills of costs in favor of defendants, payable by plaintiffs.

Plaintiffs’ appeal is evidently premised upon the misconception that the order appealed from dismissed their claims against defendant Adessie Imports, Ltd., against whom plaintiffs had previously obtained a default judgment. To the contrary, that order acknowledged plaintiffs’ claims, and merely reiterated the court‘s prior holding that the determination of damages against that defendant should await trial, rather than advancing the inquest. Accordingly, since plaintiffs are not aggrieved, in the manner claimed, by the order from which they purport to appeal, they are not permissible appellants and their appeal must be dismissed (CPLR 5511; see 308 W. 30th St. v Cogan, 289 AD2d 93 [2001]). Moreover, the issue of the propriety of that ruling, which is the only proper subject of the notice of appeal, is moot, inasmuch as plaintiffs’ claims against Adessie were extinguished by the court‘s 2004 order.

The arguments advanced by plaintiffs may not be considered by this Court as they relate solely to the 2004 order, which plaintiffs did not appeal (see Hecht v City of New York, 60 NY2d 57 [1983]). Were the issue properly before us, however, we would find that the record fails to support those arguments. Concur—Buckley, P.J., Andrias, Catterson and Malone, JJ.