State v. Berchier

124 A.D.2d 333, 508 N.Y.S.2d 110, 1986 N.Y. App. Div. LEXIS 61361

Opinion

This matter deals with a student loan made to defendant on November 12, 1968. Plaintiff sued defendant on the promissory note executed in conjunction therewith. Plaintiff moved for summary judgment based on the note and defendant cross-moved for summary judgment of dismissal on the grounds that no jurisdiction was acquired over defendant in the action and recovery on the note was barred by the Statute of Limitations. Special Term denied plaintiff’s and defendant’s cross motions for summary judgment and referred the matter for a hearing solely on the issue of whether jurisdiction was acquired over defendant. Defendant appeals from this order.

We note that Special Term made a finding that the Statute of Limitations defense did not lie. Plaintiff is entitled to a review of that finding at an appropriate time. However, the instant appeal is premature as a matter of law. The order directing a judicial hearing on the question of jurisdiction does not affect a substantial right (see, CPLR 5701 [a] [2] [v]) and is not appealable as of right. Upon a final disposition of this preliminary question, an appeal will then appropriately lie.

Appeal dismissed, without costs. Mahoney, P. J., Weiss, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.