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Aebly v. Lally

140 A.D.3d 678 Court N.Y. App. Div. Decision date 2016-06-01 English

Judges Rivera, J.P., Austin, Roman and Cohen, JJ., concur.; Rivera, J.R, Austin, Roman and Cohen, JJ., concur.

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p. 678
Richard E. Aebly, Respondent, v Regan Lally, Appellant. Bernice K. Leber, Nonparty Respondent.
[30 NYS3d 890]

Appeals from (1) an order of the Supreme Court, Nassau County (Leonard D. Steinman, J.), dated January 31, 2014, and (2) an order of that court dated October 10, 2014. The order dated January 31, 2014, insofar as appealed from, denied that branch of the defendant’s motion which was to remove the court-appointed receiver. The order dated October 10, 2014, approved the receiver’s retention of Gerald Goldstein as her counsel.

Ordered that the appeal from the order dated October 10, 2014, is dismissed, as no appeal lies as of right from an order that does not decide a motion made on notice {see CPLR 5701 [a] [2]), and we decline to grant leave to appeal {see CPLR 5701 [c]); and it is further,

Ordered that the order dated January 31, 2014, is affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs is awarded to the plaintiff and the nonparty respondent.

Under the circumstances of this case, the defendant failed to establish sufficient grounds for the removal of the receiver appointed by the court by order dated October 13, 2011. Accordingly, the Supreme Court did not improvidently exercise its discretion in denying the defendant’s motion seeking the removal of the temporary receiver (see CPLR 6405; Bank of Tokyo Trust Co. v Urban Food Malls, 229 AD2d 14 , 29 [1996]).

Rivera, J.P., Austin, Roman and Cohen, JJ., concur.

p. 679
Motion by the appellant on appeals from two orders of the Supreme Court, Nassau County, dated January 31, 2014, and October 10, 2014, respectively, inter alia, to strike stated portions of the nonparty respondent’s appendix on the ground that they contain matter dehors the record. By decision and order on motion of this Court dated July 31, 2015, that branch of the motion was held in abeyance and referred to the panel of Justices hearing the appeals 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 appeals, it is

Ordered that the branch of the motion which is to strike stated portions of the nonparty respondent’s appendix is denied.

Rivera, J.R, Austin, Roman and Cohen, JJ., concur.

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