Citibank, N.A. v S & J Inzlicht, Inc.

[*1] Citibank, N.A. v S & J Inzlicht, Inc. 2005 NYSlipOp 51174(U) Decided on July 21, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 21, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: July 21, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., PATTERSON and RIOS, JJ.
2004-1814 K C

Citibank, N.A., Respondent,

against

S & J Inzlicht, Inc., Defendant, -and- AGNES FRANKL, Appellant.

Appeal by defendant Agnes Frankl from an order of the Civil Court, Kings County (D. Waltrous, J.), entered August 2, 2004, which granted her motion to dismiss the complaint, denominated by the court as a motion for summary judgment, to the extent of setting the matter down for a traverse hearing.

Appeal unanimously dismissed.

In the instant action, defendant Agnes Frankl moved to dismiss the complaint based on lack of personal jurisdiction and alleged that plaintiff failed to exercise "due diligence" to serve her or a person of suitable age and discretion before resorting to nail and mail service under CPLR 308 (4). The lower court denominated defendant's motion as one for summary judgment and granted said defendant's motion to the extent of setting the matter down for a traverse hearing. It is from that order which defendant Frankl now appeals. Inasmuch as an order directing a judicial hearing in order to aid in the disposition of a motion does not decide the motion and does not affect a substantial right, it is not appealable as of right (see CPLR 5701 [a] [2] [v]; Stewart v County of Nassau, 120 AD2d 516 [1986]; Matter of Manufacturers Hanover Trust Co. v Porcelli, 111 AD2d 175 [1985]; Frost v Halvorsen, 100 AD2d 608 [1984]) and, therefore, the instant appeal must be dismissed.
Decision Date: July 21, 2005