Paul Revere Life Insurance v. Campagna

Nov 8, 1996
Versions:233 A.D.2d 954
649 N.Y.S.2d 113
1996 N.Y. App. Div. LEXIS 13549

Appeal unanimously dismissed without costs. Memorandum: Plaintiff appeals from an order denying its motion pursuant to CPLR 4404 (b) to vacate a decision awarding attorney’s fees to defendant and directing defendant’s counsel to submit an affirmation of services. Prior to argument of the motion, defendant’s counsel submitted an affidavit of services, and Supreme Court granted judgment to defendant for the entire amount of attorney’s fees requested. This Court dismissed plaintiff’s appeal from the judgment as untimely. Two months after signing the judgment, the court denied plaintiff’s motion.

The dismissal of plaintiff’s appeal from the judgment bars this appeal because the issues raised herein were, or could have been, raised on the prior appeal (see, Bray v Cox, 38 NY2d *955350, 353; KTM Partnership-I v 160 W. 86th St. Partners, 169 AD2d 462). Although the order on appeal was entered after entry of the final judgment, that order is subsumed in the judgment and the right to appeal directly therefrom terminated (see, Dietz Intl. Pub. Adjusters v Frankart Distribs., 157 AD2d 625). (Appeal from Order of Supreme Court, Monroe County, Lunn, J.—Attorney’s Fees.) Present—Denman, P. J., Fallon, Wesley, Balio and Davis, JJ.