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Lambert v. Schreiber

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


January 26, 2010

DONALD LAMBERT, APPELLANT,
v.
LAURENCE E. SCHREIBER, RESPONDENT.

In an action, inter alia, to recover damages for breach of a contract for the sale of real property and for specific performance of that contract, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Pitts, J.), dated September 2, 2008, which, in effect, held in abeyance his motion, in effect, for summary judgment awarding damages for breach of contract and, thereupon, for a judgment awarding damages in lieu of a prior judgment in his favor on the cause of action for specific performance, pending a certain determination by the Brookhaven Town Planning Board.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

A. GAIL PRUDENTI, P.J., JOSEPH COVELLO, PLUMMER E. LOTT and SANDRA L. SGROI, JJ.

(Index No. 9385/99)

DECISION & ORDER

ORDERED that the appeal is dismissed, without costs or disbursements.

The order appealed from did not decide the plaintiff's motion, but instead, in effect, held it in abeyance pending a certain determination by the Brookhaven Town Planning Board. Accordingly, no appeal lies as of right from that order (see CPLR 5701[a][2]; Acunto v Stewart Ave. Gardens, LLC, 26 AD3d 305; Abrahamsen v Brockway Glass Co., 119 AD2d 612), and we decline to grant leave to appeal in light of our determination on the companion appeal (see Lambert v Schreiber,AD3d [Appellate Division Docket No. 2008-01680, decided herewith]).

PRUDENTI, P.J., COVELLO, LOTT and SGROI, JJ., concur.

20100126

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