Hausmann v United States Life Ins.

Hausmann v United States Life Ins. 2015 NY Slip Op 04255 Decided on May 19, 2015 Appellate Division, First 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 May 19, 2015
Mazzarelli, J.P., Acosta, Saxe, Manzanet-Daniels, Clark, JJ.
15166 650038/12

[*1] Ricardo Hausmann, Plaintiff-Appellant,

v

United States Life Insurance, et al., Defendants-Respondents.

Moreira and Associates PLLC, Rahway (Sheila Moreira of counsel), for appellant.

Fishkin Lucks LLP, New York (Steven M. Lucks of counsel), for respondents.

Order, Supreme Court, New York County (Ellen M. Coin, J.), entered January 29, 2014, which granted defendants' motion for entry of judgment in their favor, and directed the Clerk to enter judgment dismissing the complaint with prejudice, unanimously affirmed, without costs.

The court correctly directed entry of judgment in favor of defendants, because no claims remained in this action. Although, in a prior order entered May 3, 2012, the court severed and continued the breach of contract cause of action, in its underlying decision, which is controlling (see Madison III Assoc. Ltd. Partnership v Brock, 258 AD2d 355, 355 [1st Dept 1999]; Curry v Curry, 14 AD3d 646, 647 [2d Dept 2005]), it stated that it was dismissing the cause of action except with respect to plaintiff's claim for post-termination compensation. That post-termination compensation claim was subsequently discontinued by stipulation entered August 21, 2013. Because plaintiff never appealed from the order entered May 3, 2012, he is bound by the underlying decision (see Fusco v Kraumlap Realty Corp., 1 AD3d 189, 193 [1st Dept 2003] [the correctness of the Housing Court's decision and order was not before this Court, where the order was never appealed]).

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 19, 2015

CLERK