Edgar S. v Roman

Edgar S. v Roman 2014 NY Slip Op 02028 Decided on March 26, 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 March 26, 2014
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
RUTH C. BALKIN, J.P.
SANDRA L. SGROI
JEFFREY A. COHEN
HECTOR D. LASALLE, JJ.
2012-09692
(Index No. 7354/03)

[*1]Edgar S. (Anonymous), by the guardian of his person Lita S. (Anonymous), plaintiff-appellant, Maria S. (Anonymous), plaintiff-respondent,

v

Rolando Roman, etc., et al., defendants; Bernard F. McGovern, nonparty-respondent.




Feng Li, New York, N.Y., for plaintiff-appellant.
Bruce G. Clark & Associates, P.C., Port Washington, N.Y.
(Diane C. Cooper of counsel), for
plaintiff-respondent.


DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, etc., Lita S., as guardian of the person of the plaintiff Edgar S., appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (O'Donoghue, J.), entered October 26, 2012, as directed the distribution of the proceeds of a certain settlement agreement. Motion by the plaintiff-respondent, inter alia, to dismiss the appeal on the grounds that the appellant is not aggrieved by the order appealed from and that the appellant lacks standing. By decision and order on motion of this Court dated August 21, 2013, those branches of the motion were 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 submission of the appeal, it is

ORDERED that the branch of the motion which is to dismiss the appeal on the ground that the appellant is not aggrieved by the order appealed from is granted (see CPLR 5511); and it is further,

ORDERED that the branch of the motion which is to dismiss the appeal on the ground that the appellant lacks standing is denied as academic; and it is further,

ORDERED that the appeal is dismissed, with costs to the plaintiff-respondent.

A party is aggrieved within the meaning of CPLR 5511 "when he or she asks for relief but that relief is denied in whole or in part," or, when someone "asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part" (Mixon v TBV, Inc., 76 AD3d 144, 156-157 [emphasis omitted]; see Mahmood v Gutman, 81 AD3d 792, 792). " [A party] is not aggrieved by an order which does not grant relief [he or she] did not request'" (Spielman v Mehraban, 105 AD3d 943, 943-944, quoting Schlecker v Yorktown Elec. & Light. Distribs., Inc., 94 AD3d 855, 855). Here, the appellant is not aggrieved by so much of the order appealed from as directed the distribution of the proceeds of a certain settlement agreement, since she did not move [*2]for any relief nor was any relief granted against her. Since the appellant is not aggrieved, the appeal must be dismissed (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d at 156-157).
BALKIN, J.P., SGROI, COHEN and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court