CPLR 5511

U.S. Bank, N.A. v Hossain, 2018 NY Slip Op 04593 [2d Dept. 2018]

This appeal was taken by notice of appeal dated February 18, 2016, and served on February 19, 2016. The notice of appeal was signed by an attorney from a law firm which identified itself as the attorneys for "Plaintiff's assignee," the assignee being identified as Wilmington Trust, National Association, not in its individual capacity but as Trustee for ARLP Securitization Trust Series 2015 (hereinafter Wilmington Trust). The brief filed in support of the appeal by Wilmington Trust characterizes Wilmington Trust as "Nonparty-Appellant." According to the brief, the subject mortgage was assigned by the plaintiff to Christiana Trust, a Division of Wilmington Savings Fund Society, FSB, not in its individual capacity but as Trustee of ARLP Trust 2 (hereinafter Christiana Trust), by assignment dated April 19, 2016, and recorded on July 18, 2016. Further, the brief asserts that the mortgage was assigned by Christiana Trust to Wilmington Trust by assignment dated May 18, 2016, and recorded on June 23, 2016.

The appeal must be dismissed as, according to the information provided by the appellant, it was neither a party to the action nor an assignee of a party at the time the appeal was taken (see CPLR 5511).

The bold is mine.

Hernstat v Anthony's Windows on the Lake, Inc., 2018 NY Slip Op 04311 [2d Dept. 2018]

The plaintiff commenced this personal injury action after she fell from an interior staircase at the defendants' premises. The defendants subsequently moved for summary judgment dismissing the complaint based on spoliation of evidence. The defendants contended that their efforts to defend against the action by arguing that the high-heeled shoes worn by the plaintiff at the time of her accident caused or contributed to her fall were fatally compromised by the plaintiff's disposal of the shoes shortly after her accident. In opposition to the motion, the plaintiff contended that the sanction of dismissal was unwarranted, and proposed the imposition of the lesser sanction of an adverse inference charge to be given to the jury at trial. The Supreme Court denied the defendants' motion and imposed the lesser sanction of an adverse inference charge, as requested by the plaintiff. The plaintiff appeals.

The appeal must be dismissed, as the plaintiff is not aggrieved by the order appealed from, which denied the defendants' motion for summary judgment and imposed the lesser sanction of an adverse inference charge in accordance with the plaintiff's request (see CPLR 5511; Pillai v Pillai, 153 AD3d 1290).

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