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Fourth Department — Real Property Sale: Gately v. Gately

Appellate Division, Fourth Department

Real Property Sale

Merger Doctrine — Moot Appeal

Gately v. Gately
CA 13-00387
Appealed from Supreme Court, Erie County

Background: The defendant appealed from orders that approved a contract to sell the parties’ real property and vacate a notice of pendency filed by the defendant against the plaintiff and the receiver.

Ruling: The Appellate Division unanimously dismissed the appeal. The court noted that the property was sold before the defendant perfected his appeal and he did not seek a stay of the order approving the sale. Under the doctrine of merger, the contract and the deed merged and the contract may not be rescinded. Therefore, the appeal was moot.

John A. Cirando of D.J. & J.A. Cirando for the defendant-appellant; Michael J. Willett of Damon Morey for the plaintiff-respondent; John A. Collins of Lipsitz Green Scime Cambria for the respondent