Levy v. Levy

20 A.D.3d 511, 797 N.Y.S.2d 911

Opinion

In an action for a divorce and ancillary relief, the defendant appeals from (1) a referee’s report of the Supreme Court, Queens County (Corrado, R.), dated May 12, 2003, made after a hearing, and (2) an order of the same court (Dorsa, J.), entered September 23, 2003, which confirmed the referee’s report to the extent of dismissing the cause of action for a divorce but referred the parties to Family Court, Queens County, for “relief’ on the issue of spousal maintenance.

Ordered that the appeals are dismissed, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a determination of the defendant’s pending motions.

The appeal from the referee’s report must be dismissed, as no appeal lies therefrom (see CPLR 5701 [a] [1], [2]). The appeal from the order must also be dismissed. The appellant is not aggrieved by that portion of the order which confirmed the referee’s report to the extent of dismissing the cause of action for a divorce (see CPLR 5511). To the extent that the appellant is arguing that the Supreme Court erred in failing to decide her motions with regard to maintenance arrears and an attorney’s fee, these issues are not properly before us as they are pending and undecided (see Katz v Katz, 68 AD2d 536 [1979]). We note that there is no bar to the Supreme Court, Queens County, determining the appellant’s pending motions. Florio, J.P, S. Miller, Luciano and Mastro, JJ, concur.