M & W Registry, Inc. v. Shah

Dec 18, 2007
Versions:46 A.D.3d 771
847 N.Y.S.2d 478

In an action, inter alia, to recover damages for breach of contract, the defendant Darshan Shah appeals from (1) an order of the Supreme Court, Kings County (Schmidt, J.), dated February 9, 2007, which denied the motion by the plaintiff‘s attorney to withdraw as counsel for the plaintiff, and (2) an order of the same court dated February 13, 2007, which, among other things, granted those branches of the plaintiff‘s motion which were to amend the complaint and vacate the note of issue.

Ordered that the appeal from the order dated February 9, 2007 is dismissed, without costs or disbursements, as the defendant was not aggrieved thereby (see CPLR 5511); and it is further,

Ordered that the appeal from the order dated February 13, 2007, is dismissed as abandoned (see 22 NYCRR 670.8 [e]), without costs or disbursements.

In his brief on appeal, the defendant raises no argument addressed to the issues contained in the order dated February 13, 2007. Hence, he has abandoned his appeal from that order (see Poughkeepsie-Highland R.R. Bridge Co. v Central Hudson Gas & Elec. Corp., 278 AD2d 468, 470 [2000]). The defendant‘s argument that the complaint should have been dismissed was not properly raised before the motion court and thus appropriately was not addressed in the order dated February 9, 2007 (see CPLR 2215; Thomas v Drifters, 219 AD2d 639, 640 [1995]; cf. New York State Div. of Human Rights v Oceanside Cove II Apt. Corp., 39 AD3d 608, 609 [2007]; Khaolaead v Leisure Video, 18 AD3d 820, 821 [2005]). Accordingly, any arguments concerning that issue are not properly before this Court.

Crane, J.P., Ritter, Fisher, Covello and Dickerson, JJ., concur.