Scacchetti v. Lonobile

472 N.E.2d 1030, 63 N.Y.2d 892, 483 N.Y.S.2d 202, 1984 N.Y. LEXIS 4690

Opinion

OPINION OF THE COURT

Memorandum.

The appeal is dismissed, without costs.

Defendant in this partition action appeals from a judgment of the Supreme Court, Monroe County, which was necessarily affected by an order of the Appellate Division on a prior appeal in the action. Defendant bases his appeal as of right pursuant to CPLR 5601 (subd [d]), on the fact that the prior nonfinal order of the Appellate Division modified an order of the Supreme Court and thus apparently would have been appealable as a matter of right under CPLR 5601 (subd [a], par [iii]) but for the lack of finality.

The Appellate Division modification, however, was based on that court’s power to exercise its discretion to determine the appropriate distribution of the proceeds of a partition sale, an action for partition being equitable in nature. As there is nothing in the record to suggest that the court abused its discretion as a matter of law or that the result is so outrageous as to shock the conscience, the modification was a nonreviewable act of discretion and the order is thus not appealable as of right (Patron v Patron, 40 NY2d 582).

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed, without costs, in a memorandum.