Matter of Sedita v Sacha

Matter of Matter of Sedita v Sacha 2012 NY Slip Op 06725 Decided on October 5, 2012 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 5, 2012
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SCUDDER, P.J., SMITH, FAHEY, AND LINDLEY, JJ.
1061 CA 12-00594

[*1]IN THE MATTER OF FRANK A. SEDITA, III AND ERIE COUNTY DISTRICT ATTORNEY'S OFFICE, PETITIONERS-APPELLANTS,

v

MARK A. SACHA, RESPONDENT-RESPONDENT.


Appeal from an order of the Supreme Court, Erie County (Mark H. Dadd, A.J.), entered September 6, 2011. The order "denied" the petition.


HODGSON RUSS LLP, BUFFALO (JOSHUA FEINSTEIN OF COUNSEL), FOR PETITIONERS-APPELLANTS.
CHAMBERLAIN D'AMANDA OPPENHEIMER & GREENFIELD, LLP, ROCHESTER (MATTHEW J. FUSCO OF COUNSEL), FOR RESPONDENT-RESPONDENT.


It is hereby ORDERED that said appeal is unanimously dismissed without costs.

Memorandum: Although petitioners appeal from an order that purportedly "denied" their petition, they concede in their brief that Supreme Court "effectively granted the relief requested in the Verified Petition" and seek only to have certain language stricken from the order. Where, as here, the appealing parties have by their own concession "obtained the full relief sought, [they have] no grounds for appeal . . . This is so even where [they] disagree[] with the particular findings, rationale or the opinion supporting the order . . . , or where [they] failed to prevail on all the issues that had been raised" (Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545). "Merely because the order appealed from contains language or reasoning that a party deems adverse to its interests does not furnish a basis for standing to take an appeal" (Cholowsky v Civiletti, 69 AD3d 110, 116 [internal quotation marks omitted]). We therefore agree with respondent that this appeal must be dismissed (see CPLR 5511).

We note that we have not addressed petitioners' remaining contentions inasmuch as those contentions are raised for the first time in their reply brief and thus are not properly before this Court (see generally Matter of State of New York v Zimmer [appeal No. 4], 63
AD3d 1563, 1564; Turner v Canale, 15 AD3d 960, 961, lv denied 5 NY3d 702).
Entered: October 5, 2012
Frances E. Cafarell
Clerk of the Court