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COMMERCE BANK, N.A. v. GLOBE INST. OF TECH., INC.

9019, 603917/08, 590034/08.

2013 NY Slip Op 00264

COMMERCE BANK, N.A., Plaintiff, v. GLOBE INSTITUTE OF TECHNOLOGY, INC., ET AL., Defendants. GLOBE INSTITUTE OF TECHNOLOGY, INC., ET AL., Third-Party Plaintiffs-Appellants 878 EDUCATION, LLC, ET AL., Third-Party Defendants. 172 VAN DUZER REALTY CORP., Nonparty-Respondent.

Appellate Division of the Supreme Court of New York, First Department.

Decided January 17, 2013.

Attorney(s) appearing for the Case

Herzfeld & Rubin P.C., New York ( David B. Hamm of counsel), for appellants.

Cox Padmore Skolnik & Shakarchy LLP, New York ( Noah Potter of counsel), for respondent.

Before: Mazzarelli, J.P., Andrias, DeGrasse, Richter, Clark, JJ.

The order appealed from is the result of an ex parte application and thus, is not appealable as of right (see Unanue v Rennert, 39 A.D.3d 289 [1st Dept 2007]; CPLR 5701[a][2]). However, under the circumstances presented, we deem the notice of appeal to be a motion for leave to appeal, and grant said leave (see e.g Ning-Yen Yao v Yao, 88 A.D.3d 462 [1st Dept 2011]).

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