Opinion
1184 CA 19-01833
05-07-2021
Osvaldo GARCIA, Plaintiff-Appellant, v. TOWN OF TONAWANDA, County of Erie, Defendants-Respondents, et al., Defendant.
MEMORANDUM AND ORDER
It is hereby ORDERED that said appeal is dismissed without costs.
Memorandum: Plaintiff purports to appeal from a memorandum decision that granted the motions of defendant Town of Tonawanda and defendant County of Erie for summary judgment dismissing the complaint against them. We dismiss the appeal. "[N]o appeal lies from a mere decision" ( Gunn v. Palmieri , 86 N.Y.2d 830, 830, 634 N.Y.S.2d 435, 658 N.E.2d 212 [1995] ; see Kuhn v. Kuhn , 129 A.D.2d 967, 967, 514 N.Y.S.2d 284 [4th Dept. 1987] ). Although the Erie County Clerk's electronic docket labeled the document as a "decision and order," the document appealed from is denominated "Memorandum Decision" and, on its face, is a mere decision from which no appeal lies (see generally Plastic Surgery Group of Rochester, LLC v. Evangelisti , 39 A.D.3d 1265, 1266, 832 N.Y.S.2d 840 [4th Dept. 2007] ). Thus, since no order or judgment has been entered pursuant to the decision, the appeal has not been presented to us in a proper manner and must be dismissed (see Kuhn , 129 A.D.2d at 967, 514 N.Y.S.2d 284 ).
All concur except Dejoseph, J., who dissents in accordance with the following memorandum:
I respectfully dissent and would not dismiss the appeal (see Nicol v. Nicol , 179 A.D.3d 1472, 1473, 118 N.Y.S.3d 833 [4th Dept. 2020] ).