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D'Agnese v. Spinelli

Appellate Division of the Supreme Court of New York, Second Department
Sep 29, 2003
764 N.Y.S.2d 878 (N.Y. App. Div. 2003)

Opinion

2002-08210, 2002-09481

Argued May 27, 2003.

September 29, 2003.

In an action to recover damages for breach of a real estate contract, the plaintiff appeals from (1) so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), dated August 19, 2002, as granted her motion to preclude a nonparty witness from testifying at the trial of this action only to the extent of directing a hearing to determine whether the witness is within the defendant's control, and (2) an order of the same court dated October 7, 2002, which denied her motion for summary judgment on the first through fourth causes of action.

Vivian L. Hausch, White Plains, N.Y., for appellant.

Medina O'Brien, P.C., Ossining, N.Y. (James J. Huben of counsel), for respondent.

Before: NANCY E. SMITH, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, STEPHEN G. CRANE, JJ.


DECISION ORDER

ORDERED that the appeal from the order dated August 19, 2002, is dismissed; and it is further,

ORDERED that the order dated October 7, 2002, is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the defendant.

The appeal from the order dated August 19, 2002, must be dismissed. An order which directs a judicial hearing to aid in the disposition of a motion is not appealable as of right because it does not decide the motion, and does not affect a substantial right ( see Aw v. Aw, 305 A.D.2d 344, 345; Rosen v. Swarzman, 296 A.D.2d 392; Kogler v. Nassau County Med. Ctr., 289 A.D.2d 298; Matter of New York Presbyt. Hosp., 276 A.D.2d 558), and leave to appeal has not been granted.

The additional evidence the plaintiff submitted in support of her "second" motion for summary judgment was insufficient to resolve the issues of fact which this court identified in affirming the denial of her previous motion ( see D'Agnese v. Spinelli, 290 A.D.2d 528). Accordingly, the motion for summary judgment was properly denied.

SMITH, J.P., KRAUSMAN, LUCIANO and CRANE, JJ., concur.


Summaries of

D'Agnese v. Spinelli

Appellate Division of the Supreme Court of New York, Second Department
Sep 29, 2003
764 N.Y.S.2d 878 (N.Y. App. Div. 2003)
Case details for

D'Agnese v. Spinelli

Case Details

Full title:BETTY ANN D'AGNESE, f/k/a BETTY ANN PINCKNEY, appellant, v. DIANA…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Sep 29, 2003

Citations

764 N.Y.S.2d 878 (N.Y. App. Div. 2003)
764 N.Y.S.2d 878

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