Archive Port Chester News Wire 2006 June 16-30

Town of Rye v Bernard Abel (2006 NY Slip Op 05002)
Bernard Abel, etc., appellant. (Index No. 10223/04). Lovett & Gould, LLP, White Plains, ... Mann & Mann, LLP, Port Chester, N.Y. (Carolyn H. Mann and ...www.courts.state.ny.us/reporter/3dseries/2006/2006_05002.htm - 5k - Cached

Decided on June 20, 2006

SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT ANITA R. FLORIO, J.P. FRED T. SANTUCCI REINALDO E. RIVERA STEVEN W. FISHER, JJ. 2005-01136

DECISION & ORDER 2005-01137 2005-03939 2005-03940

[*1]Town of Rye, etc., respondent, vBernard Abel, etc., appellant. (Index No. 10223/04) Lovett & Gould, LLP, White Plains, N.Y. (Jonathan Lovett and Drita Nicaj of counsel), for appellant. Mann & Mann, LLP, Port Chester, N.Y. (Carolyn H. Mann and Monroe Mann of counsel), for respondent.

In an action pursuant to Real Property Tax Law article 4 to recover unpaid real property taxes and damages for fraud based on an invalid tax exemption, the defendant appeals from (1) an order of the Supreme Court, Westchester County (Barone, J.), entered January 5, 2005, which granted the plaintiff's motion for summary judgment on its claim for damages in the sum of $11,834.70 and on the issue of liability on its claims for punitive damages and for an award of an attorney's fee, (2) a judgment of the same court dated January 11, 2005, which, upon the order, is in favor of the plaintiff and against him in the principal sum of $11,834.70, (3) a decision of the same court dated March 25, 2005, and (4) a judgment of the same court dated March 31, 2005, which, upon the order and the decision, is in favor of the plaintiff and against him in the principal sum of $9,002.50.

ORDERED that the appeals from the order and the decision are dismissed, without costs or disbursemens; and it is further,

ORDERED that the judgments are reversed, on the law, without costs or [*2]disbursements, the motion is denied, and the order is modified accordingly.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the respective judgments in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgments (see CPLR 5501[a][1]).
The appeal from the decision must be dismissed because no appeal lies from a decision (see Schicchi v Green Constr. Corp., 100 AD2d 509).

In response to the plaintiff's prima facie showing that the defendant's primary residence was not in the Town of Rye, as he had alleged in his application for the School Tax Relief Exemption for his house in the Town of Rye, Westchester County, the defendant showed the existence of a factual question on this issue. Accordingly, the Supreme Court erred in granting the defendant's motion for summary judgment (see Matter of Markham v Comstock, 272 AD2d 971, appeal dismissed 15 NY2d 886, cert denied 531 US 1079; see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324).

FLORIO, J.P., SANTUCCI, RIVERA and FISHER, JJ., concur.

ENTER:

James Edward Pelzer
Clerk of the Court