Keller v. Frank P. Eberhard Co.
| Decision Date | 08 April 1985 |
| Citation | 110 A.D.2d 686,487 N.Y.S.2d 603 |
| Parties | Robert J. KELLER, Appellant, v. FRANK P. EBERHARD COMPANY, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
MacKennan, Coulter & Polhemus, Poughkeepsie (Robert A. MacKennan, Poughkeepsie, of counsel), for appellant.
Corbally, Gartland & Rappleyea, Poughkeepsie (Joseph F. Hawkins, Poughkeepsie, on the brief), for respondents.
Before MANGANO, J.P., and BROWN, NIEHOFF and LAWRENCE, JJ.
MEMORANDUM BY THE COURT.
In an action to recover rents allegedly due on a lease of real property, plaintiff appeals from an order of the Supreme Court, Dutchess County, dated May 21, 1984, which on defendants' motion to dismiss the action pursuant to CPLR 3211 and to compel arbitration, directed that a hearing be held on the issue of the intent of the parties concerning the interpretation of the arbitration clause contained in the lease, and denied his cross motion for summary judgment with leave to renew.
Appeal from so much of the order as directs a hearing on defendants' motion dismissed, without costs or disbursements. That portion of the order appealed from does not determine defendants' motion and does not affect a substantial right (see CPLR 5701[a][2][v] ), and, therefore, is not appealable as of right (see Bagdy v. Progresso Foods Corp., 86 A.D.2d 589, 446 N.Y.S.2d 137; Astuto v. New York Univ. Med. Center, 97 A.D.2d 805, 468 N.Y.S.2d 671).
Insofar as it denies plaintiff's cross motion with leave to renew, order affirmed, without costs or disbursements.
Although an order denying a motion without prejudice to renewal is appealable as of right (see, e.g., Okin v. White Plains Hosp., 97 A.D.2d 399, 467 N.Y.S.2d 225), the record in this case presents issues of fact warranting the denial of summary judgment at this juncture.
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