Wheeler v McCreight

[*1] Wheeler v McCreight 2012 NY Slip Op 50143(U) Decided on January 24, 2012 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 24, 2012
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., PESCE and RIOS, JJ
2010-931 Q C. x

Pamela J. Wheeler, Appellant,

against

Loretta L. McCreight, Respondent. x

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered February 3, 2010. The order granted defendant's motion to dismiss the complaint to the extent of setting the matter down for a traverse hearing and for final disposition of the motion.

ORDERED that the appeal is dismissed.

In this action to recover for personal injuries allegedly sustained in a motor vehicle accident, defendant moved to dismiss the complaint on the ground of lack of personal jurisdiction. By order entered February 3, 2010, the Civil Court (William A. Viscovich, J.) set the matter down for a traverse hearing on service of the summons and complaint and for final disposition of defendant's motion. Plaintiff appeals from this order. Following the traverse hearing, by order entered March 25, 2010, the Civil Court (Maureen A. Healy, J.) dismissed the complaint upon plaintiff's default. A judgment dismissing the complaint was entered on October 7, 2010.

No appeal lies from an order setting the matter down for a traverse hearing to determine whether service was proper (see CCA 1702 [a] [2]; Tovia Capital, LLC v Katebi, 21 Misc 3d 128[A], 2008 NY Slip Op 51957[U] [App Term, 2d & 11th Jud Dists 2008]; see also Frost v Halvorsen, 100 AD2d 608 [1984]; Citibank, N.A. v S & J Inzlicht, Inc., 8 Misc 3d 134[A], 2005 NY Slip Op 51174[U] [App Term, 2d & 11th Jud Dists 2005]). Furthermore, no appeal lies from the intermediate order as the right to appeal therefrom terminated with the entry of the judgment on October 7, 2010 (see Matter of Aho, 39 NY2d 241 [1976]). Accordingly, the appeal is dismissed.

Weston, J.P., Pesce and Rios, JJ., concur. [*2]
Decision Date: January 24, 2012