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MATTER ESTATE ANTHONY R. FOGLIA (06/30/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


June 30, 1969

IN THE MATTER OF THE ESTATE OF ANTHONY R. FOGLIA, DECEASED. OLGA E. FOGLIA, AS ADMINISTRATRIX OF THE ESTATE OF ANTHONY R. FOGLIA, DECEASED, RESPONDENT; PHYLLIS RISPOLI, APPELLANT

In a contested accounting proceeding, the objectant appeals from (1) an order of the Surrogate's Court, Kings County, dated April 30, 1968, which denied her motion for reargument of a prior decision of said court (denominated in the record as an "order") dated February 13, 1968, directing sua spontethat her jury demand be struck out, and (2) said decision.

Brennan, Acting P. J., Rabin, Hopkins, Benjamin and Kleinfeld, JJ., concur.

No appeal lies from an order denying reargument (Matter of Barbaro v. Wyman, 32 A.D.2d 740; Sklan v. Sklan, 29 A.D.2d 526; Schiff v. Doctors Hosp., 29 A.D.2d 534; Matter of Eaton v. Paulson, 29 A.D.2d 945). Similarly, no appeal lies from a decision (Balk v. Frank, 29 A.D.2d 685). Although the determination of February 13, 1968 is denominated an order, it is in fact a decision. However, we have considered the merits of appellant's contentions and, if we were not required to dismiss the appeals, we would affirm the determinations.

Disposition

Appeals dismissed, without costs; the order and the decision are non-appealable.

19690630

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