D'Agnese v. Spinelli

308 A.D.2d 561, 764 N.Y.S.2d 878

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 29, 2003
• Status: Published

Opinion

—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.

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 AD2d 344, 345 [2003]; Rosen v Swarzman, 296 AD2d 392 [2002]; Kogler v Nassau County Med. Ctr., 289 AD2d 298 [2001]; Matter of New York Presbyt. Hosp., 276 AD2d 558 [2000]), 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 AD2d 528 [2002]). Accordingly, the motion for summary judgment was properly denied. Smith, J.P., Krausman, Luciano and Crane, JJ., concur.