Zabezhanskaya v. Dinhofer

2 A.D.3d 521, 767 N.Y.S.2d 870

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 8, 2003
• Status: Published

Opinion

—In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Satterfield, J.), dated May 2, 2002, as denied his motion for leave to renew, reargue, or vacate a prior “decision on remand” of the same court dated March 16, 2001.

Ordered that the appeal is dismissed, without costs or disbursements.

By decision and order dated July 17, 2000, this Court modified a judgment of divorce of the Supreme Court, Queens County, dated September 9, 1998, and remitted the matter to the Supreme Court, Queens County, to recalculate the amount of child support arrears owed by the defendant and for the entry of an amended judgment of divorce (see Zabezhanskaya v Dinhofer, 274 AD2d 476 [2000]). The Supreme Court later issued a “decision on remand” and an amended judgment of divorce incorporating the “decision on remand.”

The appellant improperly has taken an appeal from the order denying his motion for leave to renew, reargue, or vacate the “decision on remand,” as no appeal lies from an order denying renewal, reargument, or vacatur of a decision (see Matter of Colonial Penn Ins. Co. v Culley, 144 AD2d 363 [1988]; Plaxall, Inc. v Obes Intl. Moving Servs., 119 AD2d 560 [1986]; De Falco v JRS Confectionary, 118 AD2d 752 [1986]; Matter of Metropolitan Prop.& Liab. Ins. Co. v Boisette, 105 AD2d 785 [1984]). Therefore, the appeal must be dismissed. The appellant’s remedy was to take an appeal from the amended judgment of divorce. Smith, J.P., McGinity, Luciano and Townes, JJ., concur.