Schwyter v DeNoble, 2016 NY Slip Op 05913 [142 AD3d 698]

August 31, 2016

Appellate Division, Second Department

[*1]

Herman Schwyter et al., Appellants,

v

John DeNoble, Jr., Respondent, et al., Defendants.

Hall & Hall, LLP, Staten Island, NY (John G. Hall of counsel), for appellants.

John P. Gulino, P.C., Staten Island, NY, for respondent.

In an action to foreclose a mortgage, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Green, J.), dated June 25, 2014, as, upon granting the motion of the defendant John DeNoble, Jr., to dismiss the complaint insofar as asserted against him, did so with prejudice.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant John DeNoble, Jr., to dismiss the complaint insofar as asserted against him is granted without prejudice.

As the Supreme Court directed the dismissal of the complaint insofar as asserted against the defendant John DeNoble, Jr., on the ground of lack of personal jurisdiction based upon improper service, the decretal paragraph of the order should not have stated that the dismissal was with prejudice ( see Canzona v Atanasio , 118 AD3d 837 [2014]; Trivedi v Golub , 46 AD3d 542 [2007]). Chambers, J.P., Dickerson, Duffy and LaSalle, JJ., concur.

Motion by the defendant John DeNoble, Jr., to dismiss an appeal from an order of the Supreme Court, Richmond County, dated June 25, 2014, on the ground that the appellants are not aggrieved thereby, and separate motion by that defendant, inter alia, for this Court to take judicial notice of an order of the same court dated March 31, 2015. By decisions and orders on motion of this Court dated April 30, 2015, and August 15, 2015, respectively, the first motion and the subject branch of the second motion were held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof. [*2] Upon the papers filed in support of the motions and the papers filed in opposition thereto, and upon the argument of the appeal, it is Ordered that the branch of the motion which is to take judicial notice of the order dated March 31, 2015, is granted; and it is further, Ordered that the motion to dismiss the appeal is denied. Chambers, J.P., Dickerson, Duffy and LaSalle, JJ., concur..