Barbaro v Spinelli

Barbaro v Spinelli 2014 NY Slip Op 06787 Decided on October 8, 2014 Appellate Division, Second 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 8, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
RUTH C. BALKIN
ROBERT J. MILLER
SYLVIA O. HINDS-RADIX, JJ.
2012-05256
(Index No. 100155/09)

[*1]Nicholas Barbaro, appellant,

v

Thomas Spinelli, et al., defendants-respondents, et al., defendant; MHT Holdings, Inc., et al., nonparty-respondents.

Storch Amini & Munves, P.C., New York, N.Y. (Bijan Amini, John W. Brewer, and Thomas M. Monahan of counsel), for appellant.

Hagan, Coury & Associates, Brooklyn, N.Y. (Paul Golden of counsel), for defendants-respondents Thomas Spinelli, Donna Spinelli, also known as Donna Mazzaferro, Allstate Funding Services, Inc., Matiz Maldonado, and Business Club Network.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of fiduciary duty, the plaintiff appeals from an order of the Supreme Court, Richmond County (Maltese, J.), dated January 13, 2012, which granted the motion of the nonparties MHT Holdings, Inc., North American Manufacturing Enterprises, Inc., and Steven Mazzaferro to quash nonparty subpoenas served upon them by the plaintiff, and denied his cross motion to enforce the nonparty subpoenas and for leave to serve an amended complaint adding nonparties MHT Holdings, Inc., and North American Manufacturing Enterprises, Inc., as defendants. Motion by the defendants-respondents Thomas Spinelli, Donna Spinelli, also known as Donna Mazzaferro, Allstate Funding Services, Inc., Matiz Maldonado, and Business Club Network, inter alia, to dismiss the appeal on the ground that the right of direct appeal terminated with entry of a final judgment in the action. By decision and order on motion of this Court dated March 12, 2013, that branch of the motion which was to dismiss the appeal was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that the branch of the motion which is to dismiss the appeal is granted; and it is further,

ORDERED that the appeal is dismissed, without costs or disbursements.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of final judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been [*2]considered on the companion appeal from the judgment (see CPLR 5501[a][1]; Barbaro v Spinelli, _____ AD3d _____ [Appellate Division Docket No. 2013-02401; decided herewith]).

RIVERA, J.P., BALKIN, MILLER and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court