Plastic Surgery Group of Rochester, LLC v. Evangelisti

Apr 20, 2007
Appeal No. 1
Versions:39 A.D.3d 1265
832 N.Y.S.2d 840

THE PLASTIC SURGERY GROUP OF ROCHESTER, LLC, Appellant, v STEPHEN M. EVANGELISTI, M.D., Defendant and Counterclaim Plaintiff-Respondent. RALPH P. PENNINO, M.D., et al., Counterclaim Defendants-Appellants. (Appeal No. 1.) [832 NYS2d 840]—Appeal from a decision (denominated amended and corrected decision and order) of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), entered September 29, 2006. The decision, among other things, directed the parties to settle an order consistent with the decision.

It is hereby ordered that said appeal be and the same hereby is unanimously dismissed without costs.

Present—Scudder, P.J., Centra, Lunn, Peradotto and Pine, JJ.

Memorandum: Although the document on appeal in appeal No. 1 is denominated an amended and corrected decision and order, we conclude that it is a mere decision, from which no appeal lies (see Kuhn v Kuhn, 129 AD2d 967 [1987]). We affirm the order in appeal No. 2 for reasons stated in the decision at Supreme Court. We add only that the requests of plaintiff and the counterclaim defendants for an award of costs and expenses incurred in opposing the contempt motion and for the imposition of sanctions against defendant based on his conduct in filing the contempt motion are raised for the first time on appeal and thus are not properly before this Court (see Moss v McKelvey, 32 AD3d 1281, 1283 [2006]; Ali v Ahmad, 24 AD3d 475, 476 [2005]; see generally Ciesinski v Town of Aurora, 202 AD2d 984, 985 [1994]). Present—Scudder, P.J., Centra, Lunn, Peradotto and Pine, JJ.

THE PLASTIC SURGERY GROUP OF ROCHESTER, LLC, Appellant, v STEPHEN M. EVANGELISTI, M.D., Defendant and Counterclaim Plaintiff-Respondent. RALPH P. PENNINO, M.D., et al., Counterclaim Defendants-Appellants. (Appeal No. 2.) [832 NYS2d 840]—Appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), entered September 29, 2006. The order, among other things, conditionally granted defendant‘s motion to hold a nonparty witness in contempt and granted defendant‘s cross motion to compel the production of certain documents.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Same memorandum as in Plastic Surgery Group of Rochester, LLC v Evangelisti (39 AD3d 1265 [2007]). Present—Scudder, P.J., Centra, Lunn, Peradotto and Pine, JJ.