Astrada v. Archer

• Decision Date: 16 March 2010
• Citation: 898 N.Y.S.2d 149,71 A.D.3d 803
• Parties: Faith ASTRADA, respondent, v. Hulbert ARCHER, defendant, Regina Felton, appellant.
• Court: New York Supreme Court — Appellate Division

898 N.Y.S.2d 149
71 A.D.3d 803

Faith ASTRADA, respondent,
v.
Hulbert ARCHER, defendant,
Regina Felton, appellant.

Supreme Court, Appellate Division, Second Department, New York.

March 16, 2010.

898 N.Y.S.2d 150

Regina Felton, Brooklyn, N.Y., appellant pro se.

James T. Gerardi, P.C., East Northport, N.Y., for respondent.

STEVEN W. FISHER, J.P., DANIEL D. ANGIOLILLO, PLUMMER E. LOTT, and SANDRA L. SGROI, JJ.

71 A.D.3d 803

In an action, inter alia, to recover damages for breach of a contract for the sale of real property, the defendant Regina Felton appeals (1), as limited by her brief, from so much of an order of the Supreme Court, Kings County (Schack, J.), dated February 1, 2008, as directed a hearing to aid in the disposition of those branches of the plaintiff's motion which were (a) to hold her in contempt of court for failure to comply with a prior order of the same court dated February 14, 2007, directing her

71 A.D.3d 804

to return the plaintiff's down payment and pay statutory interest to the plaintiff, and (b) for an award of costs, including an attorney's fee, pursuant to 22 NYCRR 130-1.1, (2) from an order of the same court dated March 28, 2008, which, after the hearing, in effect, granted that branch of the plaintiff's motion which was to hold her in contempt of court for failure to comply with a prior order of the same court dated February 14, 2007, directing her to return the plaintiff's down payment and pay statutory interest to the plaintiff, and directed her incarceration in the event she failed to do so within 10 days of March 28, 2008, (3) from an order of the same court dated August 7, 2008, which, after a hearing, in effect, granted that branch of the plaintiff's motion which was for an award of costs, including an attorney's fee, pursuant to 22 NYCRR 130-1.1 and directed her to pay costs to the plaintiff in the principal sum of $40,600. 50 and to pay a sanction to the Lawyers' Fund for Client Protection in the sum of $10,000, (4) from a money judgment of the same court dated October 2, 2008, which is in favor of the plaintiff and against her in the principal sum of $40,600.50, and (5) from an order of the same court dated November 21, 2008, which, sua sponte, directed a hearing to determine whether she should be held in criminal contempt for violating the order dated August 7, 2008, by failing to pay a sanction to the Lawyers' Fund for Client Protection in the sum of $10,000.

ORDERED that the appeals from the orders dated February 1, 2008, and November 21, 2008, are dismissed; and it is further,

ORDERED that the appeal from so much of the order dated August 7, 2008, as, after a hearing, in effect, granted that branch of the plaintiff's motion which was for an award of costs, including an attorney's fee, pursuant to 22 NYCRR 130-1.1 and directed the defendant Regina Felton to pay costs to the plaintiff in the principal sum of $40,600.50 is dismissed; and it is further,

ORDERED that the order dated March 28, 2008, is affirmed; and it is further,

ORDERED that the order dated August 7, 2008, is affirmed insofar as reviewed; and it is further,

ORDERED that the money judgment is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The appeals from the orders dated February 1, 2008, and November 21, 2008, must be dismissed. An order which directs a judicial hearing to aid in the disposition of a motion is not appealable as of right because it does not decide the motion, and

71 A.D.3d 805

does not affect a substantial right ( see Akerman v. Akerman, 53 A.D.3d 633, 862 N.Y.S.2d 383; D'Agnese v. Spinelli, 308 A.D.2d 561, 562, 764 N.Y.S.2d 878;

898 N.Y.S.2d 151

Aw v. Aw, 305 A.D.2d 344, 345, 757 N.Y.S.2d 891), and leave to appeal has not been granted. Further, any appeal from the order dated November 21, 2008, would be academic, as that order was vacated by an order of the same court dated December 5, 2008 ( see Canarelli v. Canarelli, 58 A.D.3d 658, 658-659, 872 N.Y.S.2d 464).

The appeal from so much of the order dated August 7, 2008, as, after a hearing, in effect, granted that branch...