Bagdy v. Progresso Foods Corp.

• Decision Date: 18 January 1982
• Citation: Bagdy v. Progresso Foods Corp., 446 N.Y.S.2d 137, 86 A.D.2d 589 (N.Y. App. Div. 1982)
• Parties: Raymond BAGDY, Respondent-Appellant, v. PROGRESSO FOODS CORPORATION, Appellant-Respondent, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 137

446 N.Y.S.2d 137

86 A.D.2d 589

Raymond BAGDY, Respondent-Appellant, v. PROGRESSO FOODS CORPORATION, Appellant-Respondent, et al., Defendant.

Supreme Court, Appellate Division Second Department.

Jan. 18, 1982.

McLaughlin, Simone & Lawlor, New York City (James A. Magee, New York City, of counsel), for appellant-respondent.

Barrett G. Kreisberg, White Plains, for respondent-appellant.

Before MANGANO, J. P., and WEINSTEIN, THOMPSON and BRACKEN, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, defendant Progresso Foods Corporation (Progresso) appeals, and plaintiff cross-appeals, from an order of the Supreme Court, Westchester County, dated February 4, 1981, which, upon defendant Progresso's motion to dismiss the complaint as time-barred (CPLR 3211, subd. par. 5), and upon plaintiff's assertion of a toll of the Statute of Limitations (CPLR 207, 214), directed that a hearing be held at Special Term, Part III-a, on the issue of whether defendant Progresso, during the limitations period, was amenable to service of process capable of subjecting it to the personal jurisdiction of the courts of this State.

Appeals dismissed, sua sponte, without costs or disbursements.

An order directing a judicial hearing to aid in the disposition of a motion does not affect a substantial right (CPLR 5701, subd. par. 2, cl. ), and is, therefore, not appealable as of right. (See Morris v. Morris, 33 A.D.2d 786, 787, 307 N.Y.S.2d 127; cf. Geronimo, Inc. v. Board of Educ., 69 A.D.2d 805, 415 N.Y.S.2d 64; Mortgagee Affiliates Corp. v. Jerder Realty Servs., 62 A.D.2d 591, 594-595, 406 N.Y.S.2d 326; affd. merits] 47 N.Y.2d 796, 417 N.Y.S.2d 930, 391 N.E.2d 1011; Williams Lbr. v. Sigloch, 277 App.Div. 1043, 1044, 100 N.Y.S.2d 409; Manufacturers Trust Co. v. Magdo Realty Corp., 256 App.Div. 954, 10 N.Y.S.2d 22; cf., also, Baker, Voorhis & Co. v. Heckman, 28 A.D.2d 673, 280 N.Y.S.2d 940.)

It should be noted, however, that Barocas v. PMG Holding Corp., 36 A.D.2d 763, 321 N.Y.S.2d 294, which involved an action to foreclose a mortgage on real property, is distinguishable. There, plaintiffs appealed from so much of an order, "as, after denying respondents' motion to vacate an order appointing a receiver, directed a hearing to be held for a determination as to whether the making of the mortgage constituted criminal usury in violation of section 190.40 of the Penal Law." (Barocas v. PMG Holding Corp., supra, emphasis added.) The motion to vacate had been disposed of by Special Term. The separate hearing, therefore, was not ordered to aid in the determination of that motion, "but to obtain an advance determination, prior to the trial, of but one of the issues raised by the pleadings." The Barocas court found that to force plaintiffs to litigate a trial issue in a separate pretrial hearing was an abuse of discretion and appealable. By citing Davidson v....