Cellini v. Derespiris

In an action, inter alia, to recover damages for malicious prosecution, the plaintiff appeals, as limited by his brief, from so much of (1) an order of the Supreme Court, Westchester County (DiBlasi, J.), dated February 20, 2002, as granted that branch of the oral application of the defendant Louis Derespiris which was to dismiss the claim alleging malicious prosecution insofar as it was asserted against him, and (2) an order of the same court, dated March 27, 2002, as granted that branch of the oral application of the defendants Thomas Gleason and the City of Mount Vernon which was to dismiss the same claim insofar as asserted against them.

Ordered that the appeals are dismissed, with one bill of costs to the respondents appearing separately and filing separate briefs.

An order that determines a motion that was not made on notice is not appealable as of right (CPLR 5701 [a] [2]; [c]; Blasie v County of Westchester, 169 AD2d 697; Nicolini v Carvel Corp., 142 AD2d 633). In this case, the orders decided motions which were not made on notice and we decline to grant leave to appeal. Further, we note that although this action was com*420menced in 1996, when the former CPLR 306-b was in effect, an examination of the Supreme Court file fails to disclose that the plaintiff filed the required proof of service. Florio, J.P., Feuerstein, Friedmann and Rivera, JJ., concur.