Breiterman v. Chemical Bank

144 A.D.2d 325, 534 N.Y.S.2d 867, 1988 N.Y. App. Div. LEXIS 11178

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 1988
• Status: Published

Opinion

In a turnover proceeding pursuant to CPLR article 52, the petitioner appeals, as limited by her brief, (1) from so much of an order of the Supreme Court, Queens County (Leviss, J.), dated June 9, 1987, as referred the matter for a hearing to determine whether the property the petitioner seeks to have turned over is the property of the judgment debtor, and (2) as limited by her brief, from so much of an order of the same court, dated August 5, 1987, as upon reargument, adhered to the original determination to hold a hearing.

Ordered that the appeal from the order dated June 9, 1987 is dismissed, without costs or disbursements, as that order was superseded by the order dated August 5, 1987, made upon reargument; and it is further,

Ordered that the appeal from the order dated August 5, 1987 is dismissed, without costs or disbursements.

The order dated August 5, 1987, which directs a judicial hearing to aid in the disposition of the petition, does not decide the petition and does not affect a substantial right (CPLR 5701 [a] [2] [v]), and is, therefore, not appealable as of right. Thus, the instant appeal is dismissed. Any party aggrieved by the judgment entered subsequent to the hearing may take an appeal (see, Liebling v Yankwitt, 109 AD2d 780; Devine v Devine, 106 AD2d 487; Astuto v New York Univ. Med. Center, 97 AD2d 805). Kunzeman, J. P., Weinstein, Kooper and Balletta, JJ., concur.