Permissible Appellant - Appealable Judgment or Order
Permissible appellant—Appealable judgment or order
Not every order or judgment of the Supreme Court is appealable to the Appellate Division as of right. No appeal lies from an order entered on default, or a judgment by default resulting from an inquest after the failure of the defendant to appear at trial.1 However, review may be had of matters which were the subject of contest in the Supreme Court.2 That prohibition does not apply where the defaulting party appears and contests the application for a default judgment.3 No appeal lies from an ex parte order.4 No appeal lies from an order which is obtained without notice.5 Thus, no appeal lies from an ex parte order of sequestration, an order to show cause, or an unopposed counsel fee application.6 CPLR 2214(d) provides, in part: “Order to show cause. The court in a proper case may grant an order to show cause, to be served in lieu of a notice of motion, at a time and in a manner specified therein.” It has been observed that the justice to whom an order to show cause is presented has the obligation to determine if he wishes to sign the order to show cause since CPLR 2214(d) specifically indicates that such an order may be signed “in a proper case.”7 Where the court exercises its discretion and refuses to sign the order, the moving party is left to normal motion practice.8 No appeal lies from an order declining to sign an order to show cause.9 However, the Appellate Division can grant a party's motion pursuant to CPLR 5701 [c] for leave to appeal from an order declining to sign an order to show cause.10 Where a notice of appeal has been improperly filed from an order declining to sign an order to show cause, on the court's own motion a notice of appeal may treated as an application for leave to appeal, and leave to appeal granted.11 CPLR 5704 (a) provides that the appellate division or a justice thereof may vacate or modify any order granted without notice to the adverse party by any court or a judge thereof from which an appeal would lie to such appellate division; and the appellate division may grant any order or provisional remedy applied for without notice to the adverse party and refused by any court or a judge thereof from which an appeal would lie to such appellate division.12 When a judge refuses to sign an order to show cause, the remedy is an application to the Appellate Division pursuant to CPLR 5704(a).13 No appeal lies from an order entered on consent;14 Where a husband appealed from a default judgment of divorce based on a stipulation and “opting out” agreement which the defendant attacked on appeal, the appeal was dismissed as no appeal lies from a judgment entered on consent,15 except to the extent it differs from or exceeds the consent.16 No appeal lies from an order based on a stipulation;17 a provision in a judgment which is agreed upon;18 an order which has been superseded by another order;19 a resettled judgment which does not contain a material change that would constitute a new determination;20 rulings at an Examination Before Trial;21 an order denying reargument;22 or an order denying a motion for resettlement of the decretal paragraphs of a divorce judgment.23 Where a clause is inserted in a judgment without authority the proper remedy is by motion to correct the judgment and not by appeal.24 No appeal lies from an order denying the adverse party's motion to amend the judgment of divorce, “without prejudice to renewal”;25 rulings made at a trial or hearing;26 an intermediate order in a habeas corpus proceeding;27 an order granted without opposition;28 an oral ruling;29 a decision;30 an opinion;31an order denying a motion to vacate a decision;32 or an interlocutory judgment of divorce (in the Third Department).33 No appeal lies from an order that merely clarifies a prior order.34 No appeal lies, as of right, from an order of reference,35 or, from an order directing a hearing to aid in the determination of a motion (in the Second Department).36 An order of reference is appealable as of right in the First Department.37 No appeal lies from an order directing a conference.38 No appeal lies from on order of a referee appointed to supervise discovery.39 An evidentiary ruling, made in advance of a hearing or trial on motion papers, is not appealable as of right or by permission.40 However, an order which limits the scope of issues to be tried is appealable. Thus, an order granting a motion in limine to preclude expert testimony, which effectively renders “the plaintiff's case meritless,” affects a substantial right and is therefore immediately appealable.41 An order deciding a pretrial motion in limine is appealable if it limits the scope of issues to be tried, but is not appealable if it merely determines the admissibility of evidence, since such an order is an advisory ruling.42 Preliminary conference orders are not appealable because they are not made after a motion on notice.43 Such orders may be appealed only if the aggrieved party makes a motion, on notice, to vacate or modify the preliminary conference order and, if the motion is denied, appeal from that order.44 No appeal lies from a Qualified Domestic Relations Order.45 No appeal lies from dicta.46 No appeal lies from that part of an order which fails to contain a decretal paragraph determining a motion, such that the motion is pending and undecided.47 The Second Department held that the failure to rule on a motion leaves it pending and undecided.48 The Third and Fourth Departments have held that the failure to rule on a motion is deemed a denial of the motion.49 No appeal lies, from a transcript of proceedings that has not been “so ordered” by the court.50 No appeal lies unless an order or judgment is duly entered.51 A notice of entry that does not recite the correct entry date is ineffective to trigger the 30-day appeal time. In order to start the time to appeal running, the notice of entry must correctly state when and where the judgment or decree appealed from was entered.52 “A ‘mere inaccuracy’ in the notice of entry that ‘violates no rule of practice,’ such the failure to include the index number of the case, will not avoid the 30-day appeal period.”53 The Court of Appeals has held that service of a cover letter, which stated only that the Appellate Division order was attached and did not specify that it was entered, together with a copy of the Appellate Division order that was stamped entered with the date of entry and the name of the clerk of the court where the order was entered, constituted service of the order with notice of entry so as to commence the running of appellant's time to move for leave to appeal.54 In Reynolds v. Dustman,55 Supreme Court dismissed the Article 78 proceeding petition on the merits in a paper, which, although labeled a “decision,” ended with a sentence stating that “[t]his decision shall constitute the order of the court.” It was neither stamped with a date and place of entry, nor signed by the clerk. On Aug. 8, 2002, the county attorney mailed petitioner a copy of the “decision” with a cover letter stating “[e]nclosed herewith please find the decision filed in the County Clerk's Office on August 6, 2002.” On Feb. 13, 2003, the petitioner filed a notice of appeal, dated Feb. 10, 2003. The Appellate Division dismissed the appeal as untimely, citing Norstar. The Court of Appeals reversed and remitted to the Appellate Division to determine the appeal. It held that although the Supreme Court paper respondents served identified itself as both a decision and order, it could be treated as a judgment determining the proceeding, an appealable paper. Nevertheless, respondents' cover letter describing the enclosure as a “decision filed” was not notice of entry of a judgment or order. Consequently, the cover letter was insufficient for the notice of entry required by CPLR. In addition, because their cover letter did not alert petitioner to the enclosure of an appealable paper, respondents could not rely on notations on the enclosed paper itself as providing essential elements of a notice of entry. The paper respondents enclosed was neither stamped with the date and place of entry nor signed by the clerk, and therefore did not provide the essential elements of a notice of entry. Thus, petitioner's time to appeal never commenced running and his appeal was timely taken.
1 Perlmutter v. Perlmutter, 65 A.D.2d 601, 409 N.Y.S.2d 424 (2d Dep't 1978); Matter of Guardianship of Janet L, 200 A.D.2d 801, 606 N.Y.S.2d 431 (3d Dep't 1994).
2 In Warner v. Houghton, 43 A.D.3d 376, 841 N.Y.S.2d 499 (1st Dep't 2007), aff'd, 10 N.Y.3d 913, 862 N.Y.S.2d 321, 892 N.E.2d 385 (2008), a matrimonial attorney retained by plaintiff sent defendant the summons with notice with a verified complaint alleging constructive abandonment as the grounds for divorce and an affidavit. The complaint specifically recited that equitable distribution would be sought. The letter indicated that defendant had agreed by telephone to accept service. Defendant, without retaining his own counsel, executed an “Affidavit of Defendant in Action for Divorce” on March 29, 2004, in which he admitted to constructive abandonment, and requested service of the note of issue, Request for Judicial Intervention, proposed findings of fact and conclusions of law, notice of settlement, and any other proposed orders, and acknowledged that he was appearing in the action. In June 2004, defendant retained new counsel, but in December his attorney advised counsel for plaintiff that he was withdrawing and that defendant would proceed pro se. On March 28, 2006, defendant discharged Blank Rome who he retained in November and elected to proceed pro se. On April 7, 2006 plaintiff sought, inter alia, reinstatement of a prior pendente lite motion and a temporary restraining order. The court adjourned the motion and permitted defendant to appear, on that one occasion, by telephone. Defendant told the court that when he agreed to jurisdiction in New York he was under the belief that the proceeding would be uncontested and expeditious. The court advised him that he had, by law, consented, and then granted the relief sought. An order was entered June 7, 2006, which, inter alia, restrained defendant from disposing of any marital assets, awarded plaintiff's New York counsel $50,000 in pendente lite fees, provided for discovery, and found that New York had jurisdiction. A compliance conference was held on July 25, 2006, at which defendant did not appear. The court granted plaintiff's request that defendant be precluded from obtaining discovery, and the matter was set down for an inquest on the issue of equitable distribution. That determination was memorialized by order entered on August 24, 2006. At the inquest, at which defendant did not appear, plaintiff testified and the court granted a divorce and made awards concerning the request for equitable distribution and counsel fees. Judgment was entered on December 12, and an amended judgment of divorce was thereafter entered on December 29. Defendant appealed. The Appellate Division held that while the issue of whether the divorce was properly granted may not be reviewable, the distribution award is a separate issue, and is still subject to scrutiny, even after a default (see e.g. Michalek v. Michalek, 180 A.D.2d 890, 579 N.Y.S.2d 497 (3d Dep't 1992)). The Appellate Division noted that, “An insufficient explanation for the court's distribution of property requires reversal of the judgment and remand for further consideration” (Capasso v. Capasso, 119 A.D.2d 268, 272, 506 N.Y.S.2d 686 (1st Dep't 1986)). In its August 24, 2006 order, the court found defendant in default due to his failure to appear at a compliance conference the previous month, and directed that the financial issues to which plaintiff had sought discovery were resolved for purposes of the action in accordance with her claims. Defendant was precluded from supporting or opposing the claims or offering evidence with respect to them. Defendant argued that the court abused its discretion because the motion to preclude was made orally at the compliance conference, instead of on papers. The Appellate Division held that the court erred in directing that he be precluded without affording him notice.
3 In Linger v. Linger, 88 A.D.3d 1216, 931 N.Y.S.2d 546 (3d Dep't 2011) at a January 4, 2011, conference, at which all parties appeared, Supreme Court found defendant in default because he failed to file a notice of appearance in the action and demand a complaint. The court then issued a decree entered January 12, 2011, in which it “ORDERED, ADJUDGED and DECREED, that the marriage between Plaintiff and Defendant be and hereby is dissolved pursuant to Domestic Relations Law 170(1) and the Plaintiff is granted a Judgment of Divorce.” The Appellate Division reversed. It observed that upon a party's default, a default judgment is only appropriate upon submission in some form of “proof of facts constituting the claim” (CPLR 3215 (f)). Here, Supreme Court's default judgment was made without a verified complaint having been filed by plaintiff. Also, no findings of fact or conclusions of law were made by the court (see CPLR 3215(b)), nor did the court expressly rule on the merits of plaintiff's cause of action for a divorce. Plaintiff's summons with notice alleged cruel and inhuman treatment as the ground for divorce. However, without a verified complaint, the court had no factual basis upon which it could determine that plaintiff had a meritorious cause of action for divorce based on cruel and inhuman treatment (see CPLR 3215(f)). While plaintiff submitted an affidavit in support of her application for pendente lite relief that she claimed established a factual basis for such a claim, that affidavit did not set forth sufficient facts upon which such a divorce based on cruel and inhuman treatment could be based. Also, without a verified complaint, Supreme Court could not determine whether plaintiff was a New York State resident “when the action [was] commenced and ha[d] been a resident for a continuous period of one year immediately preceding” the commencement of the action (DRL §230(1); see Lacks v. Lacks, 41 N.Y.2d 71, 76, 390 N.Y.S.2d 875, 359 N.E.2d 384 (1976). Plaintiff's affidavit did not set forth sufficient facts from which it could be determined if she established this essential element of her claim for divorce, and that issue, in the absence of a verified complaint, could not have been resolved by Supreme Court at the time it entered the default judgment. As a result, the order and judgment of divorce was vacated and the matter remitted to Supreme Court for further proceedings. In a footnote the court observed that while defendant was appealing an order entered upon default and, as a general rule, such an order is not appealable (see CPLR 5511), “that prohibition does not apply where the defaulting party appears and contests the application for a default judgment” (citing ABS 1200, LLC v. Kudriashova, 60 A.D.3d 1164, 1165 n.3, 874 N.Y.S.2d 336 (3d Dep't 2009)). Here, it was not clear if Supreme Court found defendant in default in response to an oral application made by plaintiff or on its own accord, but the court's order established that defendant appeared at the conference and the record revealed that he participated in the proceedings.
6 In Mack v. Mack, 130 A.D.2d 632, 515 N.Y.S.2d 560 (2d Dep't 1987), Appellate Division dismissed appeal by defendant husband from order dated May 30, 1986 which denied his motion to vacate his default in appearing. The record showed that the wife has already obtained a default judgment of divorce and ancillary relief and that he filed a notice of appeal. If the appeal from that judgment is perfected, the order dated May 30, 1986 may then be reviewed since the defendant contested in the Court of first instance the issue of whether his default should be vacated.
11 See CPLR 5701 [c]; Ramirez v. Gunder, 108 A.D.3d 563, 968 N.Y.S.2d 183 (2d Dep't 2013) (The Family Court erred in declining to sign the order to show cause accompanying the father's petition to modify ... Since the initial visitation determination in this matter was made as part of a stipulation of settlement entered into during the parties' divorce proceedings before the Supreme Court, it was error for the Family Court to summarily decline to sign the order to show cause on jurisdictional grounds).
14 DeBeaumon v. DeBeaumon, 118 A.D.2d 531, 499 N.Y.S.2d 158 (2d Dep't 1986) (since wife agreed to joint custody at Nisi prius she cannot complain about it on appeal).
15 In Kalra v. Kalra, 170 A.D.2d 579, 566 N.Y.S.2d 356 (2d Dep't 1991), the Appellate Division affirmed various orders of the Supreme Court, including a divorce judgment which was granted upon an open-Court stipulation of settlement and denied the husband's motion to set aside the stipulation of settlement. The Court held that the husband's appeal from the judgment of divorce had to be dismissed because the judgment was entered upon the parties' stipulation.
17 Gossett v. Turner, 126 A.D.2d 724, 511 N.Y.S.2d 319 (2d Dep't 1987) (stipulation on record in Family Court). In Greenberg v. Greenberg, 150 A.D.2d 429, 540 N.Y.S.2d 736 (2d Dep't 1989), the Appellate Division held that no appeal lies from an order entered on the stipulation of the appellant.
22 Anthony L. v. Seymour S., 128 Misc. 2d 1037, 492 N.Y.S.2d 705 (Fam. Ct. 1985); Conrad v. Conrad, 109 A.D.2d 772, 486 N.Y.S.2d 285 (2d Dep't 1985); Schaeffer v. Schaeffer, 109 A.D.2d 785, 486 N.Y.S.2d 295 (2d Dep't 1985); Cohn v. Cohn, 100 A.D.2d 528, 473 N.Y.S.2d 215 (2d Dep't 1984); Donovan v. Donovan, 63 A.D.2d 1013, 406 N.Y.S.2d 504 (2d Dep't 1978); Silverstein v. Silverstein, 130 A.D.2d 369, 515 N.Y.S.2d 29 (1st Dep't 1987); Donnelly v. Donnelly, 114 A.D.2d 671, 494 N.Y.S.2d 245 (3d Dep't 1985); Tashker v. Tashker, 131 A.D.2d 379, 517 N.Y.S.2d 12 (1st Dep't 1987) (the Appellate Division dismissed an appeal because although the order appealed was denominated as one for renewal, it was a motion for reargument only and non-appealable); Reidy v. Reidy, 136 A.D.2d 614, 523 N.Y.S.2d 860 (2d Dep't 1988) (no appeal lies order denying reargument of a decision).
24 In Hanlon v. Thonsen, 146 A.D.2d 743, 537 N.Y.S.2d 227 (2d Dep't 1989), the Appellate Division affirmed an order of the Supreme Court which, after a hearing, denied the wife's motion for leave to enter a judgment for arrears of alimony and granted the husband's cross-motion to vacate so much of the judgment of divorce as directed him to pay alimony. It appeared that the wife's former attorney submitted a proposed judgment to the court which directed the payment of $100 per week in alimony, even though there was no evidence that the parties agreed to such a provision or that the court made a determination with respect to alimony. “Where a clause is inserted in a judgment without authority the proper remedy is by motion to correct the judgment and not by appeal. ... In accordance with this rule, the defendant's cross-motion was properly decided pursuant to the court's inherent power to vacate judgments in the interests of justice.” This was a case where the Supreme Court properly amended a judgment so as to conform the terms of the judgment to the actual direction of the court, not to correct what it perceived to be a mistake of law, fact finding or discretion.
25 In Bird v. Bird, 111 A.D.2d 204, 489 N.Y.S.2d 238 (2d Dep't 1985) the Appellate Division dismissed an appeal by the husband from an order denying the wife's motion to amend the judgment of divorce to incorporate but not merge a stipulation, “without prejudice to an application to resettle [said] judgment.” While a substantial right of a party is affected by an order denying that party's motion for relief without prejudice to renewal it is not affected where the party seeking to appeal was the successful opponent of such a motion. Defendant's remedy is to appeal from any subsequent order granting resettlement).
26 Leftow v. Leftow, 104 A.D.2d 590, 479 N.Y.S.2d 375 (2d Dep't 1984) (such rulings are reviewable only in connection with appeal from judgment or order entered after trial or hearing.).
27 In Wilkes v. Wilkes, 212 A.D.2d 719, 622 N.Y.S.2d 608 (2d Dep't 1995), the Appellate Division dismissed the mother's appeal from an order of the Supreme Court which directed her to personally serve a copy of a warrant of attachment upon counsel for the husband three days prior to the delivery of the warrant of attachment to the sheriff so that the husband would have an opportunity to make the child available for visitation with the mother at a mutually agreed upon time and place; from the warrant of attachment which directed the sheriff to apprehend and bring the mother before the court and an order which, after a hearing, granted the mother temporary visitation with the infant on either Saturday or Sunday or every week from 11:00 a.m. to 7:00 p.m. The Appellate Division held that no appeal lies from an intermediate order in a habeas corpus proceeding. NY CPLR §7011 which governs the right of appeal in habeas corpus proceedings states that an appeal may be taken from a judgment refusing to grant a writ of habeas corpus or refusing an order to show cause issued under NY CPLR §7003(a), or from a judgment made upon the return of such writ or order to show cause. In this case, no return was ever filed and no judgment was entered. The intermediate orders and the warrant of attachment were not appealable.
28 In Matter of Linda K., 151 A.D.2d 574, 542 N.Y.S.2d 345 (2d Dep't 1989) the Appellate Division held that it is appropriate for an appellate court to inquire into the appealability of the order under review, even where the respondent on the appeal has not specifically requested that the appeal be dismissed. As the contempt order appealed from was granted without opposition, it was not appealable and the appeal was dismissed.
29 Tavolacci v. Garges, 124 A.D.2d 734, 508 N.Y.S.2d 236 (2d Dep't 1986). In Stern v. Stern, 273 A.D.2d 298, 708 N.Y.S.2d 707 (2d Dep't 2000), the defendant's appeal from the order, which granted the plaintiff's oral application for the appointment of a receiver to effectuate the sale of the marital premises, was dismissed because the order was not appealable as of right and leave to appeal had not been granted.
30 Schwartz v. Schwartz, 59 A.D.2d 905, 399 N.Y.S.2d 138 (2d Dep't 1977). Nagerl v. Nagerl, 46 A.D.3d 1199, 848 N.Y.S.2d 426 (3d Dep't 2007). Kuhn v. Kuhn, 129 A.D.2d 967, 514 N.Y.S.2d 284 (4th Dep't 1987) (appeal dismissed where Trial Court made subsequent decisions modifying judgment but no modified judgment yet entered thereon). In Jabri v. Jabri, 175 A.D.2d 239, 573 N.Y.S.2d 909 (2d Dep't 1991), the Appellate Division dismissed the husband's appeal from a decision of the Supreme Court which refused to reopen the trial, adhered to its original custody and visitation determination, directed him to pay $9,200 for child support arrears and awarded the wife counsel fees of $3,500. The Court held that no appeal lies from a decision. The appeal from the Supreme Court order was held in abeyance pending the redetermination of the child support provisions contained in the parties' divorce judgment.
32 Brancoveanu v. Brancoveanu, 145 A.D.2d 395, 535 N.Y.S.2d 86 (2d Dep't 1988). In Kahn v. Oshin-Kahn, 43 A.D.3d 253, 840 N.Y.S.2d 785 (1st Dep't 2007), the portion of the order appealed from that directed defendant to produce account statements for the parties' children's UGMA/UTMA bank accounts did not appear to have determined a motion for such relief made on notice. This aspect of the order was not appealable as of right (see CPLR 5701[a]); review of the provision could be had upon an appeal from an order determining a motion on notice for its vacatur.
33 Sullivan v. Sullivan, 174 A.D.2d 862, 571 N.Y.S.2d 154 (3d Dep't 1991). But see, Zack v. Zack, 183 A.D.2d 382, 590 N.Y.S.2d 632 (4th Dep't 1992), in which the husband appealed from an interlocutory judgment which granted the wife divorce on grounds of cruel and inhuman treatment. The remaining issues were directed to be resolved at a later date. The Appellate Division disagreed with the holding of the Third Department that a judgement of divorce is nonbinding and is not effective under NY Dom Rel Law §236(B)(5) in the absence of a final judgment awarding equitable distribution. It believed that the legislature did not prohibit interlocutory judgments and declined to follow the rationale of the Third Department in Sullivan v. Sullivan, 174 A.D.2d 862, 571 N.Y.S.2d 154 (3d Dep't 1991). It held that an interlocutory divorce judgment may be appealed prior to a final judgment which determines all of the respective rights of the respective parties. .
36 Warner v. Warner, 88 A.D.2d 639, 450 N.Y.S.2d 225 (2d Dep't 1982); Sklarin v. Sklarin, 86 A.D.2d 606, 447 N.Y.S.2d 681 (2d Dep't 1982); DeSantis v. DeSantis, 107 A.D.2d 734, 484 N.Y.S.2d 95 (2d Dep't 1985) (directed hearing on motion for money judgment and income deduction order); Devine v. Devine, 106 A.D.2d 487, 483 N.Y.S.2d 25 (2d Dep't 1984) (Special Term ordered a hearing to determine if the plaintiff committed a fraud causing defendant's default. Appeal from that order dismissed. An order directing a hearing to aid in the disposition of a motion does not affect a substantial right and is not appealable as of right); Palma v. Palma, 101 A.D.2d 812, 474 N.Y.S.2d 990 (2d Dep't 1984) (motion for money judgment for arrears of child support); Perez v. Perez, 100 A.D.2d 962, 474 N.Y.S.2d 989 (2d Dep't 1984) (hearing directed on motion for upward modification); Moheban v. Moheban, 149 A.D.2d 488, 540 N.Y.S.2d 717 (2d Dep't 1989). But see Bartels v. Bartels, 119 A.D.2d 714, 501 N.Y.S.2d 128 (2d Dep't 1986) where the Appellate Division held that an order directing a hearing on issues raised on wife's motion to enjoin distribution of proceeds of sale of house and place same in escrow pending determination of rights of the parties was appealable. Special Term directed a hearing but directed that an amount be held in escrow which was less than that claimed by the wife. It was error to limit the wife's maximum recovery where she reasonably alleged, she was entitled to substantially more.
37 Candid Productions, Inc. v. SFM Media Service Corp., 51 A.D.2d 943, 381 N.Y.S.2d 280 (1st Dep't 1976).
38 In Dowd v. Dowd, 74 A.D.3d 1013, 903 N.Y.S.2d 501 (2d Dep't 2010), the wife appealed from an award of pendente lite maintenance which awarded her only $1,000 per week for 10 months, and $800 per week thereafter, and directed a conference on those branches of her motion which were for an award of interim counsel fees and expert fees. The Appellate Division held that the portion of the order directing a conference did not dispose of those branches of the motion and did not affect a substantial right, and therefore is not appealable as of right (see CPLR 5701(a)(2)(v)). Since leave to appeal therefrom was not granted, it dismissed the appeal from so much of the order as directed a conference on those branches of the wife's motion which were for an award of interim counsel fees and expert fees.
39 In Etzion v. Etzion, 84 A.D.3d 1014, 924 N.Y.S.2d 437 (2d Dep't 2011), an action, inter alia, to recover damages for fraudulent misrepresentation in connection with negotiations relating to a stipulation of settlement dated June 8, 2005, which was incorporated, but not merged, into a judgment of divorce, the plaintiff appealed from an order of the Supreme Court which denied her motion to vacate the original determination in an order dated January 4, 2010, limiting discovery to documents generated and events occurring between January 1, 2004, and March 22, 2005. Both the underlying order dated January 4, 2010, limiting discovery, as well as the order appealed from, which denied the plaintiff's motion, in effect, to vacate the determination set forth in the order dated January 4, 2010, were made by a referee whom the parties had stipulated would be assigned the task of supervising pretrial discovery in this action. The Appellate Division observed that pursuant to CPLR 3104(d), a party may make a motion seeking review of a referee's order regarding discovery, which “shall be ... made in the court in which the action is pending within five days after the order is made.” The record indicated that the plaintiff did not seek review, by the trial court, of either the order dated January 4, 2010, or the order appealed from, as required by CPLR 3104(d). The Court held that the specific language of CPLR 3104(d) mandating review in the court in which the action is pending precluded the court from entertaining a direct appeal from an order of a judicial hearing officer designated as a referee to supervise disclosure (citing Crow-Crimmins-Wolff & Munier v. Westchester County, 110 A.D.2d 871, 873, 488 N.Y.S.2d 429 (2d Dep't 1985)). Accordingly, the appeal was dismissed.
40 In Lyons v. Lyons, 86 A.D.3d 569, 926 N.Y.S.2d 834 (2d Dep't 2011) the Appellate Divison ruled that the appeal from the order which denied the motion of Audrey Lyons to preclude the testimony of a court-appointed forensic evaluator at a hearing to be held on the issue of custody and to preclude the use of that evaluator's report at the hearing must be dismissed because it concerned an evidentiary ruling, which, even when made in advance of a hearing or trial on motion papers, is not appealable as of right or by permission.
41 Parker v. Mobil Oil Corp., 16 A.D.3d 648, 650, 793 N.Y.S.2d 434 (2d Dep't 2005), aff'd on other grounds, 7 N.Y.3d 434, 824 N.Y.S.2d 584, 857 N.E.2d 1114 (2006).
42 In Parker v. Mobil Oil Corp., 16 A.D.3d 648, 793 N.Y.S.2d 434 (2d Dep't 2005), aff'd on other grounds, 7 N.Y.3d 434, 824 N.Y.S.2d 584, 857 N.E.2d 1114 (2006), the Appellate Division, Second Department held that “an order made in advance of trial which merely determines the admissibility of evidence is an unappealable advisory ruling,” but “an order which limits the scope of issues to be tried is appealable.” In Hough by Hough v. Hicks, 160 A.D.2d 1114, 554 N.Y.S.2d 340 (3d Dep't 1990), the court dismissed the defendant's appeal from an order that denied his motion to preclude the admission of evidence relating to seat-belt usage at voir dire and trial.
43 DeLuca v. Federated Dept. Stores, Inc., 259 A.D.2d 421, 687 N.Y.S.2d 147 (1st Dep't 1999). In Bork v. City of New York, 237 A.D.2d 218, 655 N.Y.S.2d 32 (1st Dep't 1997), the court dismissed an appeal from an order which directed plaintiff, in the event he decided to produce a vocational expert to testify to his inability or limited ability to be employed, to produce a copy of the vocational expert's report.
45 Bernstein v. Bernstein, 18 A.D.3d 683, 795 N.Y.S.2d 733 (2d Dep't 2005); Weissman v. Weissman, 300 A.D.2d 261, 261, 751 N.Y.S.2d 366, 367 (1st Dep't 2002) (a QDRO is not appealable as of right); Zebrowski v. Zebrowski, 28 A.D.3d 883, 813 N.Y.S.2d 803, 804 (3d Dep't 2006) (As a threshold matter, we note that plaintiff has appealed from a QDRO, which may not be appealed as of right (see generally CPLR 5701[a]; see also Bernstein v. Bernstein, 18 A.D.3d 683, 683–684, 795 N.Y.S.2d 733 (2d Dep't 2005)). Gartley v. Gartley, 15 A.D.3d 995, 789 N.Y.S.2d 559, 560 (4th Dep't 2005) (We dismiss the appeal from the Qualified Domestic Relations Order (QDRO) in appeal No. 3, which applies to a tax sheltered annuity, and the appeal from the “amended” QDRO in appeal No. 2, which applies to plaintiff's retirement benefits and supersedes a prior QDRO, inasmuch as neither order is appealable as of right.) see Weissman v. Weissman, 300 A.D.2d 261, 751 N.Y.S.2d 366 (1st Dep't 2002); Gormley v. Gormley, 238 A.D.2d 545, 546, 657 N.Y.S.2d 85 (2d Dep't 1997); cf. Shaw v. Shaw, 15 A.D.3d 1007, 788 N.Y.S.2d 912 (4th Dep't 2005)).
46 Viscuso v. Viscuso, 129 A.D.3d 1679, 1681, 12 N.Y.S.3d 684 (4th Dep't 2015) no appeal lies from dicta ..., the mother's contentions with respect to her motion to replace the AFC are not before us on this appeal for that reason as well. Companion Life Ins. Co. of New York v. All State Abstract Corp., 35 A.D.3d 518, 519, 829 N.Y.S.2d 535 (2d Dep't 2006); Schuster v. Schweitzer, 203 A.D.2d 552, 612 N.Y.S.2d 933 (2d Dep't 1994); see also Lake Grove Partners, LLC v. Middleton, 29 A.D.3d 794, 814 N.Y.S.2d 741 (2d Dep't 2006); Edge Management Consulting, Inc. v. Irmas, 306 A.D.2d 69, 761 N.Y.S.2d 172 (1st Dep't 2003); Khatib v. Liverpool Cent. School Dist., 244 A.D.2d 957, 957–958, 668 N.Y.S.2d 130 (4th Dep't 1997)).
47 In Feng Lucy Luo v. Yang, 89 A.D.3d 946, 933 N.Y.S.2d 80 (2d Dep't 2011) the Appellate Division observed that the father failed to file a sworn financial disclosure affidavit and failed to comply with discovery demands. Under these circumstances, the Support Magistrate did not err in precluding the father from offering evidence as to his financial ability to pay child support (FCA §424-a(b)). Moreover, since there was insufficient evidence to determine the father's gross income, the Family Court properly denied his objections to the Support Magistrate's determination based upon the needs of the children (FCA §413(1)(k)). The Appellate Division observed that to the extent that the father raised an issue on appeal regarding his written application for an apportionment of the costs he incurred in obtaining and reproducing transcripts of the hearing, that application was not addressed by the Family Court, and remained pending and undecided (see Katz v. Katz, 68 A.D.2d 536, 418 N.Y.S.2d 99 (2d Dep't 1979)).
49 In Abdelrahman v. El Mahdi, 160 A.D.3d 1253, 74 N.Y.S.3d 672 (3d Dep't 2018) the Appellate Division held that Supreme Court(s failure to address the wife(s application for counsel fees was deemed a denial (see Hess v. Wojcik-Hess, 86 A.D.3d 847, 848 n.1, 928 N.Y.S.2d 103 (3d Dep't 2011). In Johnson v. Johnson, 68 A.D.3d 1685, 891 N.Y.S.2d 848 (4th Dep't 2009), the Appellate Division, Fourth Department, reiterated its rule that the failure to rule on a motion is deemed a denial (see Brown v. U.S. Vanadium Corp., 198 A.D.2d 863, 604 N.Y.S.2d 432 (4th Dep't 1993)).
50 Nam Tai Electronics, Inc. v. UBS PaineWebber Inc., 46 A.D.3d 486, 487, 850 N.Y.S.2d 11 (1st Dep't 2007). In Eaton v. Eaton, 46 A.D.3d 1432, 848 N.Y.S.2d 786 (4th Dep't 2007), Supreme Court sua sponte made a summary finding that defendant was in civil contempt of its order based on his alleged failure to transfer to plaintiff certain marital property pursuant to the stipulation entered into by the parties in their divorce action, and sentenced defendant to a 30-day term of incarceration. The Appellate Division held that the mandate that a contempt order be reduced to writing is an indispensable requirement, and no order was reduced to writing. Inasmuch as defendant purported to appeal from a transcript of the court proceedings rather than from an order, the appeal was dismissed.
51 Jemzura v. Jemzura, 24 A.D.2d 809, 263 N.Y.S.2d 737 (3d Dep't 1965) (appeal dismissed where order not duly entered or served). In Hoyt v. Hoyt, 18 A.D.3d 1055, 795 N.Y.S.2d 766 (3d Dep't 2005), while defendant claimed that plaintiff failed to disclose certain financial records that he requested at a deposition, those records were neither subpoenaed prior to the deposition nor subject to a proper demand for discovery and inspection following the court's preclusion order. Defendant failed to move to compel disclosure, and thus, there was no Supreme Court order on the issue from which to appeal. Accordingly, defendant's contentions were not justiciable. In Litvak v. Litvak, 63 A.D.3d 691, 880 N.Y.S.2d 690 (2d Dep't 2009), Supreme Court did not address whether a certain municipal bond was or was not marital property in its decision after trial, and the judgment appealed from contained no decretal paragraph with respect to this asset. Thus, the issue remained pending and undecided by the Supreme Court, and was not before the Court. In Jordan v. Horstmeyer, 149 A.D.3d 1307, 51 N.Y.S.3d 702 (3d Dep't 2017), opinion vacated and superseded on reconsideration, 152 A.D.3d 1097, 60 N.Y.S.3d 549 (3d Dep't 2017) the Appellate Division dismissed the mother's appeal relating to the order of Family Court. The record was devoid of proof that the order was ever entered or filed as required (see CPLR 2220[a]; FCA §§165, 1118). It held that since the order was not entered and filed in the office of the clerk of the court where the action is triable the appeal was not properly before it and had to be dismissed. (Citing People v. Davis, 130 A.D.3d 1131, 1132, 10 N.Y.S.3d 918 (3d Dep't 2015), quoting CPLR 2220[a]; see CPLR 5513 [a]; 5515; FCA §1118; People v. Fuller, 138 A.D.3d 1358, 1359, 28 N.Y.S.3d 920 (3d Dep't 2016)).
52 See Nagin v. Long Island Sav. Bank, 94 A.D.2d 710, 462 N.Y.S.2d 69 (2d Dep't 1983).