FILED: APPELLATE DIVISION - 2ND DEPT 05/08/2020 04:10 PM
`NYSCEF DOC. NO. 2
`RECEIVED NYSCEF: 05/20/2020
`
`2020-02593
`
`SUPREME COURT OF THE STATE OF NEW YORK
`APPELLATE DIVISION: SECOND DEPARTMENT
`----------------------------------------X
`ANASTACIO RODRIGUEZ, d/b/a A&R
`LANDSCAPING AND HOME IMPROVEMENT,
`Plaintiff-respondent,
`
`-against-
`JEAN-BERNARD REMY,
`
`Case No. 2020-02593
`Index No. 609458/2016
`
`Defendant-appellant.
`----------------------------------------X
`TABLE OF AUTHORITIES
`CASES
`Haverstraw Park, Inc. V. Runcible Props. Corp., 33 N.Y.2d 637 (1973)
`. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`-3-, -18-
`Mixon v. TBV, Inc., 75 A.D.3d 144, 904 N.Y.S.2d 132 (2nd Dep’t., 2010)
`. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`-3-, -10-
`Facilities Dev. Corp. V. Miletta, 246 A.D.2d 869, 667 N.Y.S.2d 805 (3rd
`Dep’t. 1998). . . . . . . . . . . . . . . . . . . . . . . .
`-3-, -22-
`Hecht v. City of New York, 60 N.Y.2d 57, 61, 467 N.Y.S.2d 187, 454
`N.E.2d 527 (1983. . . . . . . . . . . . . . . . . . . . . . . -3-, -6-
`Matter of Xander Corp. v. Haberman, 41 A.D.3d 489, 838 N.Y.S.2d 133
`(2nd Dep’t. 2007) . . . . . . . . . . . . . . . . . . . . .
`-3-, -19-
`O’Connor v. Sleasman, 14 A.D.3d 986, 788 N.Y.S.2d 518, (3rd Dep’t.,
`2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-, -4-
`Teachers Ins. & Annuity Asso. v. Third 44th Corp., 48 A.D.2d 815, 370
`N.Y.S.2d 71 (1st Dep’t. 1975) . . . . . . . . . . . . . . .
`-3-, -21-
`
`-1-
`
`

`

`STATE STATUTES
`
` CPLR 2103(b)(2). . . . . . . . . . . . . . . . . . . . . . . . .
` CPLR 5514(c) . . . . . . . . . . . . . . . . . . . . . . . . . .
`CPLR 1022 . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`CPLR 5513 . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`CPLR 5513 and 5514. . . . . . . . . . . . . . . . . . . . . . . .
`CPLR 5514(a). . . . . . . . . . . . . . . . . . . . . . . . . . .
`CPLR 5514(b). . . . . . . . . . . . . . . . . . . . . . . . . . .
`CPLR 5514(c). . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`-2-
`-2-
`-2-
`-2-
`-1-
`-2-
`-2-
`-2-
`
`EXHIBITS
`
`EXHIBIT 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . -24-
`UNDERLYING JUDGMENT . . . . . . . . . . . . . . . . . . . . -24-
`EXHIBIT 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . -31-
`NOTICE OF ENTRY
`PROOF OF SERVICE . . . . . . . . . . . . . . . . . . . . . . -31-
`EXHIBIT 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . -34-
`NOTICE OF APPEAL . . . . . . . . . . . . . . . . . . . . . . -34-
`
`-2-
`
`

`

`SUPREME COURT OF THE STATE OF NEW YORK
`APPELLATE DIVISION: SECOND DEPARTMENT
`----------------------------------------X
`ANASTACIO RODRIGUEZ, d/b/a A&R
`LANDSCAPING AND HOME IMPROVEMENT,
`Plaintiff-respondent,
`
`-against-
`JEAN-BERNARD REMY,
`
`Case No. 2020-02593
`Index No. 609458/2016
`NOTICE OF MOTION
`
`Defendant-appellant.
`----------------------------------------X
`Oral argument is requested (Check box if applicable.)
`[]
`Upon the affirmation of Bruce R. Bekritsky, dated April 17, 2020, and
`upon all prior proceedings had herein, the plaintiff-respondent will move
`this Court at the Courthouse, 45 Monroe Place, Brooklyn, New York, on May
`18, 2020, at 10:00 A.M., for an order, pursuant to CPLR 5513 and 5514
`dismissing this appeal as having been filed untimely and for such other and
`further relief as the Court deem proper, including the costs of this
`motion.
`The above-entitled action is for services rendered.
`Pursuant to CPLR 2214(b), answering affidavits, if any, are required
`[]
`to be served upon the undersigned at least seven days before the return day
`of this motion (Check box is applicable.)
`
`Dated:
`
`To:
`
`Mineola, New York
`April 27, 2020
`Nnenna Onua
`Attorney for Defendant
`McKinley Onua & Associates
`
`/S/
`BRUCE R. BEKRITSKY
`Attorney for Plaintiff-respondent
`1551 Kellum Place
`Mineola, New York 11501
`516 742-8055
`
`-1-
`
`

`

`SUPREME COURT OF THE STATE OF NEW YORK
`APPELLATE DIVISION: SECOND DEPARTMENT
`----------------------------------------X
`ANASTACIO RODRIGUEZ, d/b/a A&R
`LANDSCAPING AND HOME IMPROVEMENT,
`Plaintiff-respondent,
`
`-against-
`JEAN-BERNARD REMY,
`
`Case No. 2020-02593
`Index No. 609458/2016
`AFFIRMATION
`
`Defendant-appellant.
`----------------------------------------X
`)
`STATE OF NEW YORK
`ss.:
`County of Nassau )
`Bruce R. Bekritsky, an attorney admitted to practice before the Courts
`of the State of New York, affirms under penalty of perjury that:
`1
`I am the attorney of record for the plaintiff-respondent in this
`action.
`2
`I make this affirmation in support of plaintiff-respondent’s motion,
`pursuant to CPLR 5513 and 5514, to dismiss this appeal on the grounds that
`the Notice of Appeal was not served in a timely fashion.
`3
`On or about December 26, 2019, the Supreme Court, Nassau County,
`entered a judgment in favor of the plaintiff-respondent and against the
`defendant-appellant. The judgment awarded the plaintiff-respondent
`$13,050.00. A copy of that judgment is attached as Exhibit 1.
`4
`On January 7, 2020, I served the Judgment with Notice of Entry by
`depositing a true copy thereof enclosed in a post-paid wrapper, in an
`official depository under the exclusive care and custody of the U.S. Postal
`Service within New York State, address to Nnenna Onua, attorney for
`defendant, at McKinley Onua & Associates, 26 Court Street, Suite 300,
`Brooklyn, New York 11201. A copy of the Notice of Entry, with the
`
`-1-
`
`

`

`affirmation of service of the judgment with Notice of Entry, is attached as
`Exhibit 2.
`5
`On or about March 4, 2020, I received a Notice of Appeal from the
`attorney for the defendant-appellant. A copy of that Notice of Appeal,
`dated February 27, 2020, is attached as Exhibit 3.
`6
`Pursuant to CPLR 5513, the Notice of Appeal should have been served
`within thirty days of January 7, 2020, or no later than February 6, 2020.
`7
`Even with adding an additional five days for mailing, pursuant to CPLR
`2103(b)(2), the Notice of Appeal should have been served no later than
`February 11, 2020.
`8
`The Notice of Appeal, therefore, was served three weeks, or twenty-one
`days, late, or, with additional time for mailing, sixteen days late.
`9
`Pursuant to CPLR 5514(c), “No extension of time shall be granted for
`taking an appeal or for moving for permission to appeal except as provided
`in this section, section 1022, or section 5520.”
`10
`CPLR 1022 refer to extending time to appeal due to substitution of a
`party. There has been no substitution of parties in this action nor on this
`appeal.
`11
`Appellant has not neglected through mistake or excusable neglect to
`do another required act within the time limited in order to appeal,
`pursuant to CPLR 5514(a). This is not an appeal by permission which should
`have been an appeal as of right, as contemplated by CPLR 5514(b), and there
`is no defect in the form of the Notice of Appeal as contemplated by CPLR
`5514(c).
`12
`A late Notice of Appeal cannot be excused. O’Connor v. Sleasman, 14
`A.D.3d 986, 788 N.Y.S.2d 518, (3rd Dep’t., 2005).
`
`-2-
`
`

`

`Because the legislature manifested its intention through such explicit
`13
`language, the courts have generally held that the failure to timely appeal
`is a jurisdictional bar to consideration of the appeal on its merits. “The
`power of an appellant court to review a judgment is subject to an appeal
`having been timely taken,” Hecht v. City of New York, 60 N.Y.2d 57, 61, 467
`N.Y.S.2d 187, 454 N.E.2d 527 (1983); Mixon v. TBV, Inc., 75 A.D.3d 144, 904
`N.Y.S.2d 132 (2nd Dep’t., 2010); Haverstraw Park, Inc. V. Runcible Props.
`Corp., 33 N.Y.2d 637 (1973); Matter of Xander Corp. v. Haberman, 41 A.D.3d
`489, 838 N.Y.S.2d 133 (2nd Dep’t. 2007); Teachers Ins. & Annuity Asso. v.
`Third 44th Corp., 48 A.D.2d 815, 370 N.Y.S.2d 71 (1st Dep’t. 1975); cf:
`Facilities Dev. Corp. V. Miletta, 246 A.D.2d 869, 667 N.Y.S.2d 805 (3rd
`Dep’t. 1998), app. dismissed, 92 N.Y.S.2d 843, 677 N.Y.S.2d 428 (1998).
`14
`The Notice of Appeal was not served in a timely manner, and this
`appeal must be dismissed.
`15
`Appellant’s attorney is aware of the provisions of the CPLR. Counsel’s
`failure to comply with the CPLR has made this motion necessary. Therefore,
`respondent should be awarded the costs and disbursement of this motion.
`WHEREFORE, it is respectfully requested that this motion be granted
`in all respects, that this appeal be dismissed, and that the plaintiff-
`respondent be granted such other and further relief as the Court may deem
`just and proper.
`
`Dated:
`
`Mineola, NY
`April 27, 2020
`
`/s/
`______________________
`Bruce R. Bekritsky
`
`-3-
`
`

`

`O'Connor v. Sleasman
`Supreme Court of New York, Appellate Division, Third Department
`January 27, 2005, Decided ; January 27, 2005, Entered
`96464
`
`Reporter
`14 A.D.3d 986 *; 788 N.Y.S.2d 518 **; 2005 N.Y. App. Div. LEXIS 628 ***
`
`Chiara M. O'Connor, Appellant, v. Daniel M. Sleasman, Respondent, et al., Defendant.
`
`Subsequent History: Subsequent appeal at O'Connor v. Sleasman, 2007 N.Y. App. Div. LEXIS 1779 (N.Y.
`App. Div. 3d Dep't, Feb. 15, 2007)
`
`Counsel: David W. Morris, Saratoga Springs, for appellant.
`
`Girvin & Ferlazzo, Albany (Patrick J. Fitzgerald of counsel), for respondent.
`
`Judges: Before: Cardona, P.J., Crew III, Peters, Carpinello and Rose, JJ. Crew III, Carpinello and Rose, JJ.,
`concur; Cardona, P.J., not taking part.
`
`Opinion by: Peters
`
`Opinion
`
` [*986] [**518] Peters, J. Appeals (1) from an order of the Supreme Court (Ceresia Jr., J.), entered May 30,
`2003 in Rensselaer County, which, inter alia, partially granted defendant Daniel M. Sleasman's cross motion for
`summary judgment, and (2) from an order of said court, entered May 21, 2004 in Rensselaer County which, upon
`reargument, granted [**519] said defendant's motion for summary judgment dismissing the complaint.
`
`On May 24, 2002, plaintiff entered into a contract with defendant Daniel M. Sleasman (hereinafter defendant) to
`sell real property for $ 765,000. The initial deposit of $ 10,000 was placed in escrow and the remaining $ 30,000
`of the deposit was not due until the satisfaction of various contingencies; the closing was scheduled to occur on
`or before July 31, 2002. After [***2] the exchange of numerous letters, both the closing date and the time to make
`the additional deposit were extended. When defendant proposed the extension of the dates, however, he
`"confirm[ed] that all contingencies in our purchase agreement have been satisfied and that all deposits will be
`non-refundable and may be retained as liquidated damages in the event of failure to close." By letter dated
`September 9, 2002, defendant advised that he would not be able to close on the extended date of September
`16, 2002 and that he was still unable to pay the additional deposit. One week later, defendant proposed a
`substantial modification of the existing purchase agreement which included, among other things, a provision
`
`-4-
`
`

`

`requiring that the additional deposit be paid within 14 days of the signing of the modification agreement, an
`extension of the closing date to January 15, 2003, a reinstatement of a contingency in the original contract and
`the requirement that, in the event of a failure to close as of January 15, 2003, there be month-to-month extensions
`up to June 30, 2003. By letter dated September 17, 2002, plaintiff declared defendant to be in default by failing
`to pay the full deposit and close [***3] on September 16, 2002; she wholly rejected defendant's attempts to
`"completely restructure the agreement and your obligations." Plaintiff advised defendant that she was keeping
`the initial $ 10,000 deposit and demanded that defendant [*987] pay the balance. Defendant thereafter advised
`plaintiff that he accepted her notice of rescission and termination of the contract and further requested that she
`return his deposit.
`
`Plaintiff commenced this action for breach of contract seeking payment of the remaining $ 30,000. She moved
`for summary judgment, prompting defendant to cross-move for dismissal of the complaint. Supreme Court denied
`plaintiff's motion and partially granted defendant's cross motion to the extent that it dismissed plaintiff's claim for
`breach of contract by finding that time was not of the essence. Supreme Court further determined that there were
`issues of material fact relating to whether defendant's failure to tender the $ 30,000 constituted an anticipatory
`repudiation and material breach of the parties' agreement. On January 27, 2004, defendant again moved for
`summary judgment seeking a dismissal of the claim for anticipatory breach of contract. Supreme Court, treating
`this [***4] motion as a motion to reargue, granted the motion and ordered that the $ 10,000 initial deposit be
`returned to defendant. Plaintiff appeals both orders.
`
`Preliminarily, we note that Supreme Court's first order was entered on May 30, 2003 and the notice of appeal of
`such order is dated June 17, 2004. HN1[] As our power to review this order is dictated by the requirements of
`CPLR 5513, requirements which are "jurisdictional in nature and must be strictly adhered to" (Matter of Kolasz
`v Levitt, 63 A.D.2d 777, 779, 404 N.Y.S.2d 914 [1978]), plaintiff's appeal from the first order must be dismissed
`as untimely (see Hecht v City of New York, 60 N.Y.2d 57, 61, 454 N.E.2d 527, 467 N.Y.S.2d 187 [1983]; Matter
`of Haverstraw Park v Runcible Props. Corp., 33 N.Y.2d 637, 637, 347 N.Y.S.2d 585, 301 N.E.2d 553 [1973]).
`
` [**520] Next addressing Supreme Court's order which, upon reargument, granted defendant's motion for
`summary judgment dismissing the complaint, we find error. While Supreme Court's first order properly found that
`there were triable issues of fact on the issue of anticipatory repudiation, it erred when it found upon reargument,
`that this issue was a question of law (see Norcon Power Partners v Niagara Mohawk Power Corp., 92 N.Y.2d
`458, 463, 705 N.E.2d 656, 682 N.Y.S.2d 664 [1998]; [***5] Inter-Power of N.Y. v Niagra Mohawk Power Corp.,
`259 A.D.2d 932, 933, 686 N.Y.S.2d 911 [1999], lv denied93 N.Y.2d 812, 717 N.E.2d 699, 695 N.Y.S.2d 540
`[1999]). If it is found that HN2[] a "party repudiates contractual duties 'prior to the time designated for performance
`and before' all of the consideration has been fulfilled, the 'repudiation entitles the nonrepudiating party to claim
`damages for total breach' " (Norcon Power Partners v Niagara Mohawk Power Corp., supra at 462-463, quoting
`Long Is. R.R. Co. v Northville Indus. Corp., 41 N.Y.2d 455, 463, 362 N.E.2d 558, 393 N.Y.S.2d 925 [1977]). Such
`a factual determination is [*988] heavily dependent upon a determination of whether "a breaching party's words
`or deeds are unequivocal" (Norcon Power Partners v Niagara Mohawk Power Corp., supra at 463).
`
`Viewing the evidence in a light most favorable to plaintiff, we find that the issue regarding the anticipatory
`repudiation was not dependent upon defendant's failure to tender the $ 30,000, but rather upon defendant's
`September 16, 2002 fax detailing the numerous modifications he appeared to be requiring before he would
`complete the contract. As plaintiff immediately rejected [***6] the proposed modification by declaring the contract
`to be in breach, we find that a question of fact was raised on the issue of anticipatory repudiation.
`
`Crew III, Carpinello and Rose, JJ., concur; Cardona, P.J., not taking part. Ordered that the appeal from the order
`entered May 30, 2003 is dismissed, as untimely, without costs. Ordered that the order entered May 21, 2004 is
`reversed, without costs, and motion denied.
`
`-5-
`
`

`

`Hecht v. New York
`Court of Appeals of New York
`June 6, 1983, Argued ; September 15, 1983, Decided
`No Number in Original
`
`Reporter
`60 N.Y.2d 57 *; 454 N.E.2d 527 **; 467 N.Y.S.2d 187 ***; 1983 N.Y. LEXIS 3306 ****
`
`Estelle Hecht, Appellant, v. City of New York et al., Respondents. (And a Third-Party Action.)
`
`Counsel: Richard E. Shandell and David D. Glass for appellant. I. The court below abused its discretion in
`exercising its statutory power ( CPLR 5522). Plaintiff-appellant made out a prima facie case of negligence against
`both defendant-respondents. (Loughran v City of New York, 298 [****4] NY 320; Fordham v Gouverneur Vil.,
`160 NY 541; Mullins v Siegel-Cooper Co., 183 NY 129; Durr v New York Cent. & Hudson R. R. Co., 184 NY 320;
`Purcell v New York World's Fair, 1964/65 Corp., 33 AD2d 914; Smith v City of New York, 38 AD2d 965; Wilson
`v Jaybro Realty & Dev. Co., 289 NY 410; Taylor v New York City Tr. Auth., 63 AD2d 630; Di Grazia v City of New
`York, 35 AD2d 735; Thomson v City of New Rochelle, 26 NY2d 1047.) II. The reversal of the judgment of the
`lower court and the dismissal of the complaint does not inure to the benefit of the nonappealing defendant-
`respondent, Square Depew Garage Corp. ( Gilligan v Farmers Coop. Marketing Assn., 23 AD2d 850; Meaney
`v Loew's Hotels, 29 AD2d 850; Hutter v Levitt & Sons, 36 AD2d 758; Moran v Comptroller of City of N. Y., 69 Misc
`2d 224; Drane Lbr. Co. v T.G.K. Constr. Co., 39 AD2d 567; City of Rye v Public Serv. Mut. Ins. Co., 34 NY2d
`470; Duquin v Colucci, 60 AD2d 995; Ralston Purina Co. v Siegel's Poultry, 24 AD2d 926; Tenavision, Inc. v
`Neuman, 45 NY2d 145; Segar v Youngs, 45 NY2d 568; San Lucas v Bornn & Co., 225 NY 717.)
`
`Frederick A. O. Schwarz, [****5] Jr., Corporation Counsel (Frank S. Plimpton and Briscoe R. Smith of counsel),
`for City of New York, respondent. I. The court below correctly decided that plaintiff failed to show that an
`actionable defect existed. (Loughran v City of New York, 298 NY 320; Keirstead v City of New York, 17 NY2d
`535; Fox v Brown, 15 NY2d 597; Lynch v City of Beacon, 295 NY 872; Dowd v City of Buffalo, 290 NY 895; Stakel
`v City of Batavia, 260 NY 628; Smith v City of New York, 223 NY 608; Terry v Village of Perry, 199 NY 79; Butler
`v Village of Oxford, 186 NY 444; Hamilton v City of Buffalo, 173 NY 72.) II. The issues not decided by the court
`below also require reversal of the trial court. (Matter of Kovarsky v Housing & Dev. Admin. of City of N. Y., 31
`NY2d 184; Matter of Napolitano [MVAIC], 21 NY2d 281; D'Ambrosio v City of New York, 55 NY2d 454; Trustees
`of Vil. of Canandaigua v Foster, 156 NY 354; Santorelli v City of New York, 77 AD2d 825; Wylie v City of New
`York, 286 App Div 720; Ohrt v City of Buffalo, 281 App Div 344; Schrold v City of New York, 273 App Div 872,
`298 NY 738; Nickelsburg v City of New [****6] York, 263 App Div 625; Lombardozzi v City of New York, 71 Misc
`2d 271.) III. The city takes no position as to whether the nonappealing defendant should benefit from the dismissal
`of the complaint, Joseph D. Ahearn and Michael Majewski for Square Depew Garage Corp., respondent. I. Since
`the Supreme Court judgment was a joint judgment and since defendant Square Depew possesses substantial
`contribution rights under said judgment, the court below had the power to reverse plaintiff's judgment against
`defendant Square Depew (the nonappealing defendant to the Appellate Division) and to dismiss plaintiff's
`complaint against said defendant in order to protect defendant Square Depew's right to contribution. ( Arnold v
`District Council No. 9, Int. Brotherhood of Painters & Allied Trades, 61 AD2d 748, 46 NY2d 999; Statella v Chuck-
`row Constr. Co., 28 AD2d 669; Rome Cable Corp. v Tanney, 21 AD2d 342; Town of Massena v Niagara Mohawk
`Power Corp., 45 NY2d 482; City of Glen Cove v Utilities & Inds. Corp., 17 NY2d 205; Opper v Tripp Lake Estates,
`274 App Div 422; Monahan v Fiore, 76 AD2d 884; Kelly v Long Is. Light. Co., 31 NY2d 25; Zillman v
`Meadowbrook [****7] Hosp. Co., 45 AD2d 267; Boice v Jones, 106 App Div 547.) II. The authorities relied upon
`by plaintiff are manifestly inapplicable. (City of Rye v Public Serv. Mut. Ins. Co., 34 NY2d 470; Tenavision, Inc.
`v Neuman, 45 NY2d 145; Manes Co. v Greenwood Mills, 53 NY2d 759; Gilligan v Farmers Coop. Marketing
`Assn., 23 AD2d 850; Meany v Lowe's Hotels, 29 AD2d 850; Hutter v Levitt & Sons, 36 AD2d 758; Southern
`Assoc. v United Brands Co., 67 AD2d 199; Video Techniques v Teleprompter Corp., 60 AD2d 526; Ralston Purina
`Co. v Siegel's Poultry, 24 AD2d 926.) III. Assuming, arguendo, that the court below's reversal as it related to
`having the reversal inure to the benefit of defendant Square Depew was solely "on the law" and not in the
`
`-6-
`
`

`

`exercise of discretion, it is respectfully submitted that the Appellate Division was required to arrive at its
`conclusion. IV. Solely in the alternative, if this court concludes that the Appellate Division determination regarding
`the disposition as to defendant Square Depew was solely "on the law" and also holds that the Appellate Division
`had the discretion (but was not mandated) to arrive at such disposition, this [****8] court should remit the action
`to the Appellate Division pursuant to CPLR 5613 in order to have the Appellate Division exercise its discretion.
`V. If this court were to reverse the Appellate Division order upon the ground that plaintiff made out a prima facie
`case with respect to the accident, this court, pursuant to CPLR 5613, should remit the entire action to the
`Appellate Division for determination of questions of fact.
`
`Judges: Chief Judge Cooke. Judges Jasen, Jones, Wachtler, Meyer and Simons concur.
`
`Opinion by: COOKE
`
`Opinion
`
` [*60] [**529] [***189] OPINION OF THE COURT
`
`This appeal presents a question respecting the limits of an appellate court's scope of review of a judgment
`rendered against multiple parties but appealed by only one. Generally, an appellate court cannot grant affirmative
`relief to a nonappealing party unless it is necessary to do so in order to accord full relief to a party who has
`appealed. Thus, it was error here for the Appellate Division to dismiss the action against a joint tort-feasor found
`liable at trial, but who took no appeal from the judgment.
`
`Plaintiff commenced this negligence action against the City of New York and the Square Depew Garage [****9]
`Corporation for injuries sustained when she fell on a sidewalk located outside a garage operated by defendant
`corporation. After a jury trial, both defendants were found to be [*61] equally liable. Only the City of New York
`appealed the judgment.
`
`The Appellate Division reversed on the law and dismissed the complaint, holding that there was no actionable
`defect in the sidewalk. The court added, however, that "[although] only the city prosecuted an appeal, the whole
`of the judgment is before us * * * and our disposition necessarily effects a dismissal as to the garage defendant
`as well." This court now modifies the order of the Appellate Division by reinstating the judgment against Square
`Depew Garage Corporation.
`
`The gravamen of plaintiff's complaint was that defendants failed to maintain the sidewalk in a condition reasonably
`safe for pedestrians, which failure proximately caused plaintiff's injuries. Plaintiff's proof established that there
`was a slight gap between two flagstones of the sidewalk. The gap may only be described as trivial.
`Consequently, it was not error for the Appellate Division to have found no actionable defect in the sidewalk and
`to have dismissed [****10] the complaint against the City of New York.
`
`The other defendant, Square Depew Garage Corporation, however, took no appeal from the judgment. The
`Appellate Division, therefore, was without power to vacate the judgment against that defendant.
`HN1[] The power of an appellate court to review a judgment is subject to an appeal being timely taken (see CPLR
`5513, 5515; see, also, Matter of Haverstraw Park v Runcible Props. Corp., 33 NY2d 637; Ocean Acc. & Guar.
`Corp. v Otis Elevator Co., 291 NY 254; Roy v National Grange Mut. Ins. Co., 85 AD2d 832, 832-833). And an
`appellate court's scope of review with respect to an appellant, once an appeal has been timely taken, is generally
`limited to those parts of the judgment that have been appealed and that aggrieve the appealing party (see CPLR
`5501, subd [a]; 5511; see, also, Segar v Youngs, 45 NY2d 568; Stark v National City Bank, 278 NY 388, 394; St.
`John v Andrews Inst. for Girls, 192 NY 382, 386-389; Kennis v Sherwood, 82 AD2d 847, 848; Pinder v Gromet,
`10 AD2d 977, 978; Frankel v Berman, 10 AD2d 838; Strecker v Kew Gardens Realty Assoc., 230 App Div 714;
`cf. Matter of Burk, 298 NY 450, 455). The corollary [****11] to this rule is that an appellate court's reversal or
` [*62] modification of a judgment as to an appealing party will not inure to the benefit of a nonappealing coparty
`
`-7-
`
`

`

`(see St. John v Andrews Inst. for Girls, 192 NY 382, 386-389, supra; Bonat v Crosswell, 241 App Div 230;
`Kohlmetz v Amdoursky, 227 App Div 758; San Lucas v Bornn & Co., 173 App Div 703; Orr v Wolff, 71 App Div
`614) unless the judgment was rendered against parties having a united and inseverable interest in the judgment's
`subject matter, which itself permits no inconsistent [**530] [***190] application among the parties (see Matter
`of Winburn, 270 NY 196, 198; United States Print. & Lithograph Co. v Powers, 233 NY 143, 152-155).
`
`It is, of course, axiomatic that, HN2[] once an appeal is properly before it, a court may fashion complete relief to
`the appealing party. On rare occasions, the grant of full relief to the appealing party may necessarily entail
`granting relief to a nonappealing party (cf. United States Print. & Lithograph Co. v Powers, 233 NY 143, supra).
`At this time, there is no need to detail or enumerate the specific circumstances when such a judgment or
`order [****12] might be appropriate.
`
`Having set forth the rule in general, the court turns to its application here. The appeal by the City of New York
`to the Appellate Division brought up for its review, with respect to the defendants, only so much of the judgment
`as imposed liability against the city. As full relief to the city can be achieved without granting relief to Square
`Depew, it was error to dismiss the complaint as to Square Depew unless the city's interest could be said to be
`inseparable from that of Square Depew.
`HN3[] When multiple tort-feasors are found to be liable for damages, they may not be said to have an inseverable
`interest in the judgment, even though the factual basis for each party's liability is identical. Liability is said to be
`"joint and several", meaning that each party is individually liable to plaintiff for the whole of the damage (see
`Restatement, Torts 2d, § 875, and Comment [b]). A plaintiff may proceed against any or all defendants (see
`Siskind v Levy, 13 AD2d 538; Kapossky v Berry, 212 App Div 833). Moreover, a judgment for or against one tort-
`feasor does not operate as a merger or bar of a claim against other tort-feasors (see Restatement,
`Judgments [****13] 2d, § 49, and Comment [*63] [a]). Thus, Square Depew's interest was severable from that
`of its codefendant. Inasmuch as the judgment here was appealed only by the city, the Appellate Division's
`reversal was effective only as to that party.
`
`Square Depew argues that the Appellate Division is vested with discretionary power to grant relief to a
`nonappealing party in the interest of justice, and that the Appellate Division has exercised that discretion in this
`case. In so arguing, Square Depew relies on CPLR 5522, which provides, in pertinent part, that HN4[] "[a] court
`to which an appeal is taken may reverse, affirm, or modify, wholly or in part, any judgment or order before it, as
`to any party." It has been proposed that the clause "as to any party" vests the Appellate Division with discretionary
`power to grant relief to a nonappealing party who appears before the court as a respondent. The Appellate
`Division in the past has claimed this power and applied it on a number of occasions (see, e.g., Halftown v Triple
`D Leasing Corp., 89 AD2d 794; Monahan v Fiore, 76 AD2d 884; Foley v Roche 68 AD2d 558; Statella v
`Chuckrow Constr. Co., 28 AD2d 669; Rome Cable [****14] Corp. v Tanney, 21 AD2d 342). This court now holds
`that neither CPLR 5522 nor any other statutory or constitutional authority permits an appellate court to exercise
`any general discretionary power to grant relief to a nonappealing party. *
`
`The common-law concept of a judgment rendered against multiple parties was that, if an error found on appeal
`required reversal as to one party, the judgment must be reversed as to all (see Harman v Brotherson, 1 Denio
`537; Sheldon v Quinlen, 5 Hill 441; Cruikshank v Gardner, 2 Hill 333). This result obtained even when theories
`of liability against the defendants [****15] differed or [**531] [***191] when there was error as to only one of the
`parties (see Sheldon v Quinlen, 5 Hill 441, 442-443, supra). The rule was derived from the principle "that there
`can be only one final judgment in an action at law" (Draper v Interborough R. T. Co., 124 App Div 357, 359).
`
` [*64] With the advent of statutory provisions permitting appellate courts to reverse, affirm, or modify a judgment,
`in whole or in part, with respect to any of the parties (see Code of Pro [Field Code], § 330; Code Civ Pro, § 1317;
`Civ Prac Act, § 584), the common-law rule was effectively abrogated (see Campbell v Perkins, 8 NY 430; Van
`Slyck v Snell, 6 Lans 299; Geraud v Stagg, 10 How Prac 369). Judgments are no longer necessarily viewed as
`
`*
`
`To be distinguished is CPLR 5501 (subd [a], par 5), applicable when a trial court has granted additur or remittitur relief
`with respect to an excessive or insufficient verdict. When the beneficiary of that order appeals, the appellate court may,
`under this provision, grant affirmative relief to the nonappealing party by reinstating the verdict (see 7 Weinstein-Korn-
`Miller, NY Civ Prac, par 5501.13).
`
`-8-
`
`

`

`indivisible entireties, reversal of which as to one of the parties necessarily effecting a reversal as to all parties
`against whom the judgment was rendered (compare Sheldon v Quinlen, 5 Hill 441, supra, with Goodsell v
`Western Union Tel. Co., 109 NY 147). Rather, when multiple parties bring or defend an action or proceeding, and
`an appeal is taken from an adverse determination below, the appellate court [****16] can fashion relief to the
`various parties within the confines of the governing substantive law. That is the import of CPLR 5522. Moreover,
`nothing in the legislative history of this provision, its statutory antecedents, or its constitutional counterpart (see
`NY Const, art VI, § 5), nor any construction of these provisions by this court indicate that the "as to any party"
`language vests appellate courts with discretionary power to grant relief to a nonappealing party. The provisions
`were not meant to expand either the jurisdiction or the scope of review of an appellate court, but were merely
`intended to enumerate the forms of dispositions an appellate court may order. CPLR 5522, therefore, should be
`read in harmony with the statutory scheme which limits an appellate court's authority to the grant of relief to those
`who have appealed, except as discussed above.
`
`Accordingly, the order of the Appellate Division should be modified, with costs to appellant, by reinstating the
`judgment in favor of plaintiff against Square Depew Garage Corporation and, as so modified, affirmed.
`
`Order modified, with costs to appellant, in accordance with [****17] the opinion herein and, as so modified,
`affirmed.
`
`-9-
`
`

`

`Mixon v TBV, Inc.
`Supreme Court of New York, Appellate Division, Second Department
`June 22, 2010, Decided
`2008-08612
`
`Reporter
`76 A.D.3d 144 *; 904 N.Y.S.2d 132 **; 2010 N.Y. App. Div. LEXIS 5526 ***; 2010 NY Slip Op 5521 ****
`
` [****1] Katrina Mixon et al., Respondents, v TBV, Inc., et al., Respondents, and Jonathin Transporter et al.,
`Appellants, et al., Defendants Index No. 21689/02
`
`Counsel: [***1] Cruser, Mitchell & Novitz, LLP, Melville (Beth S. Gereg of counsel), appellant pro se, and for
`Jonathin Transporter, appellant.
`
`Rubenstein & Rynecki, Brooklyn (Kliopatra Vrontos of counsel), for Katrina Mixon and another, respondents.
`
`Campolo, Middleton & Associates, LLP, Bohemia (Scott D. Middleton of counsel), for TBV, Inc. and another,
`respondents.
`
`Judges: Peter B. Skelos, J.P., Joseph Covello, John M. Leventhal, Sheri S. Roman, JJ. Covello, Leventhal, and
`Roman, JJ., concur.
`
`Opinion by: PETER B. SKELOS
`
`Opinion
`
`[EDITOR'S NOTE: The following court-provided text does not appear at this cite in N.Y.S.2d.]
`
` [**none] [*146] Appeal by the defendants Jonathin Transporter and Cruser, Mitchell & Novitz, as Temporary
`Administrator of the Estate of James A. Robinson, Jr., in an action to recover damages for personal injuries, as
`limited by their brief, from so much of an order of the Supreme Court (Valerie Brathwaite Nelson, J.), entered
`August 4, 2008, in Queens County, as granted the cross motion of the defendants TBV, Inc., and George R.
`McLaren, Jr., for summary judgment dismissing the complaint insofar as