Opinion
Argued October 15, 1999
November 30, 1999
In an action, inter alia, to recover damages for breach of contract, the defendant Magesty Capital Corp. appeals, as limited by its brief, from (1) so much of an order of the Supreme Court, Dutchess County (Beisner, J.), dated October 2, 1998, as granted those branches of the plaintiff's motion which were for summary judgment on his second and third causes of action, and (2) so much of a judgment of the same court, entered October 8, 1998, as is in favor of the plaintiff and against it in the principal sum of $14,412 on the plaintiff's second and third causes of action.
Kreisberg Maitland Thornhill, LLP, New York, N.Y. (Scott A. Korenbaum of counsel), for appellant.
Donald P. Rosendale, Amenia, N.Y., respondent pro se.
CORNELIUS J. O'BRIEN, J.P., GABRIEL M. KRAUSMAN, ANITA R. FLORIO, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed insofar as appealed from; and it is further,
ORDERED that the respondent is awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment ( see, CPLR 5501[a][1]).
The appellant contends that the plaintiff failed to establish his entitlement to summary judgment because a stock market report submitted in support of the motion did not constitute admissible evidence. However, this issue is raised for the first time on appeal, and is not properly before this court ( see, Rotundo v. S C Magnetic Resonance Imaging, 255 A.D.2d 573; Gross v. Aetna Cas. Sur. Co., 240 A.D.2d 468). "An appellate court should not, and will not, consider different theories or new questions, if proof might have been offered to refute or overcome them had those theories or questions been presented in the court of first instance" ( Fresh Pond Rd. Assoc. v. Estate of Schacht, 120 A.D.2d 561; see also, Rotundo v. S C Magnetic Resonance Imaging, supra).
Furthermore, the Supreme Court properly found that the appellant's evidentiary submissions were insufficient to raise an issue of fact as to whether it made reasonable efforts to sell the plaintiff's securities.
O'BRIEN, J.P., KRAUSMAN, FLORIO, and FEUERSTEIN, JJ., concur.
DECISION ORDER ON MOTION
Motion by the appellant to strike stated portions of pages 4, 5, 16, 19, and 20 of the respondent's brief on appeals from (1) an order of the Supreme Court, Dutchess County, dated October 2, 1998, and (2) a judgment of the same court entered October 8, 1998, on the ground that those portions of the brief contain scandalous or prejudicial matter. By decision and order dated June 8, 1999, the motion was held in abeyance and referred to the Justices hearing the appeals for determination upon the argument or submission of the appeals.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeals, it is
ORDERED that the motion is granted, and those portions of pages 4, 5, 16, 19, and 20 of the respondent's brief set forth in the appellant's motion papers are deemed stricken and have not been considered in the determination of the appeals.
O'BRIEN, J.P., KRAUSMAN, FLORIO, and FEUERSTEIN, JJ., concur.