Matter of Thomas and Agnes Carvel Foundation

Matter of Thomas & Agnes Carvel Found. 2003 NY Slip Op 20018 [2 AD3d 869] December 29, 2003 Appellate Division, Second Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

In the Matter of Thomas and Agnes Carvel Foundation, Respondent-Appellant. Pamela Carvel et al., Appellants-Respondents.

—In a proceeding, inter alia, to enforce the terms of a reciprocal agreement and to enjoin the transfer of funds, (1) Pamela Carvel appeals, as limited by her brief, from so much of an order of the Surrogate's Court, Westchester County (Scarpino, S.), dated June 21, 2001, as granted those branches of the motion of Thomas and Agnes Carvel Foundation which were to dismiss the second counterclaim and the second, ninth, thirteenth, fourteenth, sixteenth, and eighteenth affirmative defenses asserted in the answer, (2) Leonard M. Ross separately appeals from stated portions of the same order, and (3) Thomas and Agnes Carvel Foundation cross-appeals, as limited by its brief, from (a) stated portions of a decision of the same court dated March 30, 2001, and (b) so much of the order dated June 21, 2001, as denied those branches of its motion which were to dismiss the first counterclaim and the fifth, sixth, seventh, eighth, twelfth, and twentieth affirmative defenses asserted in the answer. Justice McGinity has been substituted for the late Justice O'Brien (see 22 NYCRR 670.1 [c]).

Ordered that the appeals and the cross appeals are dismissed, without costs or disbursements.

The appeal by Leonard M. Ross must be dismissed for failure to perfect the same in accordance with the rules of this Court (see 22 NYCRR 670.8 [c], [e]).

The cross appeal from the decision must be dismissed as no appeal lies from a decision (see Schicchi v Green Constr. Corp., 100 AD2d 509 [1984]).

The appeal by Pamela Carvel and the cross appeal by Thomas and Agnes Carvel Foundation from the order dated June 21, 2001, must be dismissed because the right of direct appeal therefrom terminated with entry of a decree on July 8, 2002 (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal and the cross appeal from the order are brought up for review and have been considered on the appeal from the decree (see CPLR 5501 [a] [1]; Matter of Carvel, — AD3d — [ decided herewith]). Krausman, J.P., McGinity, Townes and Cozier, JJ., concur.