Opinion
03-02-2017
Donald H. McCORMACK, Appellant, v. Kevin P. MALONEY, Respondent.
Noreen E. McCarthy, Keene Valley, for appellant. James Brooks, Lake Placid, for respondent.
Noreen E. McCarthy, Keene Valley, for appellant.
James Brooks, Lake Placid, for respondent.
Before: PETERS, P.J., McCARTHY, EGAN JR., ROSE and MULVEY, JJ.
MULVEY, J. Appeals (1) from an order of the County Court of Essex County (Meyer, J.), entered August 18, 2015, which granted defendant's motion to strike plaintiff's demand for a jury trial, and (2) from an order of said court, entered August 25, 2015, which denied plaintiff's motion for summary judgment.
In 2010, plaintiff filed a summons and complaint seeking foreclosure of a mortgage given by defendant. A default judgment entered against defendant was later vacated and defendant was permitted to serve an answer with counterclaims. Both parties moved for summary judgment and County Court denied both motions, finding several issues of fact. Plaintiff filed a second motion for summary judgment, which was again denied. Plaintiff appeals from that order, as well as a prior order granting defendant's motion to strike plaintiff's demand for a jury trial.
While these appeals were pending, a nonjury trial was held resulting in a November 7, 2016 order in favor of plaintiff. "[T]he right to appeal from a nonfinal order terminates upon the entry of a final judgment" (State of New York v. Joseph, 29 A.D.3d 1233, 1234 n., 816 N.Y.S.2d 214 [2006], lv. denied 7 N.Y.3d 711, 823 N.Y.S.2d 770, 857 N.E.2d 65 [2006] ; accord Matter of 1801 Sixth Ave., LLC v. Empire Zone Designation Bd., 95 A.D.3d 1493, 1495, 944 N.Y.S.2d 397 [2012], lv. dismissed 20 N.Y.3d 966, 958 N.Y.S.2d 327, 982 N.E.2d 90 [2012] ). "[A] ‘final’ order or judgment is one that disposes of all of the causes of action between the parties in the action or proceeding and leaves nothing for further judicial action apart from mere ministerial matters" (Burke v. Crosson, 85 N.Y.2d 10, 15, 623 N.Y.S.2d 524, 647 N.E.2d 736 [1995] ). The November 2016 order resolved all factual and legal issues between the parties and is the final order in this action (see id. at 15–16, 623 N.Y.S.2d 524, 647 N.E.2d 736 ; Town of Coeymans v. Malphrus, 252 A.D.2d 874, 875, 676 N.Y.S.2d 347 [1998] ). Further, because plaintiff prevailed at trial, he is no longer an aggrieved party (see CPLR 5511 ). Accordingly, the instant appeals must be dismissed (see e.g. Matter of
Cobleskill Stone Prods., Inc. v. Town of Schoharie, 126 A.D.3d 1094, 1095 n. 2, 6 N.Y.S.3d 305 [2015] ; State of New York v. Joseph, 29 A.D.3d at 1234, 816 N.Y.S.2d 214 n).
ORDERED that the appeals are dismissed, without costs.
PETERS, P.J., McCARTHY, EGAN JR. and ROSE, JJ., concur.