In re Kohn
144 A.D.3d 684, 40 N.Y.S.3d 487 (2016)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
An appeal from an intermediate order must be dismissed when that order is superseded by a subsequent order made upon renewal, as the right to appeal from the intermediate order terminates upon entry of the subsequent order.
Facts:
- Following a person's death, a probate proceeding was initiated concerning their estate.
- Joel M. Hockett, acting on behalf of the decedent's estate, petitioned to recover certain property.
- Barbara Lutz, also known as Barbara Kohn, was a party to this proceeding.
- Lutz asserted a counterclaim against the estate during the proceeding.
Procedural Posture:
- In the Surrogate's Court of Suffolk County, Joel M. Hockett initiated a proceeding to discover and recover property for a decedent's estate.
- Barbara Lutz filed a counterclaim against the petitioner.
- Lutz moved for summary judgment on her fifth counterclaim, and Hockett cross-moved for summary judgment to dismiss it.
- The Surrogate's Court issued an order on June 30, 2014, granting Lutz's motion and denying relevant parts of Hockett's cross-motion.
- Subsequently, a motion for renewal was made in the Surrogate's Court, resulting in a new order dated June 30, 2015, that superseded the 2014 order.
- Hockett (appellant) appealed the original June 30, 2014 order to the Appellate Division.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Must an appeal from an intermediate court order be dismissed if a subsequent order, made upon a motion for renewal, has superseded the original order being appealed?
Opinions:
Majority - Per Curiam
Yes. An appeal from an intermediate order must be dismissed when that order is superseded by a subsequent order. The court reasoned that the appeal from the order dated June 30, 2014, could not proceed because that order was legally replaced, or 'superseded,' by a new order issued on June 30, 2015. This subsequent order was made 'upon renewal,' meaning the trial court reconsidered and re-decided the issue, thereby terminating the right to appeal the original, now-moot, order.
Analysis:
This decision illustrates a strict but fundamental rule of appellate procedure regarding the finality and appealability of orders. It underscores that litigants cannot appeal an order that has been rendered legally obsolete by subsequent court action on the same matter, such as an order on a motion to renew or reargue. This promotes judicial efficiency by preventing appellate courts from reviewing issues that the lower court has already reconsidered and re-adjudicated, ensuring that the appellate review is based on the trial court's final determination of the pre-trial issue. This serves as a critical procedural reminder for practitioners to appeal from the latest, operative order in a case.
