In re the Estate of Greatsinger

487 N.E.2d 280, 66 N.Y.2d 680, 496 N.Y.S.2d 423, 1985 N.Y. LEXIS 17236

Opinion

OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order of the Appellate Division appealed from and prior order of the Appellate Division brought up for review affirmed, without costs. It was not an abuse of discretion as a matter of law for the Appellate Division in its first order remitting to the Surrogate’s Court, to direct the allowance of counsel fees— without further specification.

The appeal, insofar as it seeks review of the second order of the Appellate Division affirming so much of the order of the Surrogate’s Court of Chemung County as made the allowance payable out of the remainder of the estate, does not lie as of right. The appeal, pursuant to CPLR 5601 (d) brings up for review only the prior nonfinal determination of the Appellate Division (CPLR 5501 [b]; see, Gilroy v American Broadcasting Co., 46 NY2d 580). Accordingly, the appeal insofar as it seeks review of the second Appellate Division order must be dismissed, without costs and without prejudice to a motion for leave to appeal from that order (see, CPLR 5514 [a]).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.