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Astrada v. Archer

March 16, 2010

FAITH ASTRADA, RESPONDENT,
v.
HULBERT ARCHER, DEFENDANT,
REGINA FELTON, APPELLANT.



In an action, inter alia, to recover damages for breach of a contract for the sale of real property, the defendant Regina Felton appeals (1), as limited by her brief, from so much of an order of the Supreme Court, Kings County (Schack, J.), dated February 1, 2008, as directed a hearing to aid in the disposition of those branches of the plaintiff's motion which were (a) to hold her in contempt of court for failure to comply with a prior order of the same court dated February 14, 2007, directing her to return the plaintiff's down payment and pay statutory interest to the plaintiff, and (b) for an award of costs, including an attorney's fee, pursuant to 22 NYCRR 130-1.1, (2) from an order of the same court dated March 28, 2008, which, after the hearing, in effect, granted that branch of the plaintiff's motion which was to hold her in contempt of court for failure to comply with a prior order of the same court dated February 14, 2007, directing her to return the plaintiff's down payment and pay statutory interest to the plaintiff, and directed her incarceration in the event she failed to do so within 10 days of March 28, 2008, (3) from an order of the same court dated August 7, 2008, which, after a hearing, in effect, granted that branch of the plaintiff's motion which was for an award of costs, including an attorney's fee, pursuant to 22 NYCRR 130-1.1 and directed her to pay costs to the plaintiff in the principal sum of $40,600.50 and to pay a sanction to the Lawyers' Fund for Client Protection in the sum of $10,000, (4) from a money judgment of the same court dated October 2, 2008, which is in favor of the plaintiff and against her in the principal sum of $40,600.50, and (5) from an order of the same court dated November 21, 2008, which, sua sponte, directed a hearing to determine whether she should be held in criminal contempt for violating the order dated August 7, 2008, by failing to pay a sanction to the Lawyers' Fund for Client Protection in the sum of $10,000.

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.

STEVEN W. FISHER, J.P., DANIEL D. ANGIOLILLO, PLUMMER E. LOTT and SANDRA L. SGROI, JJ.

(Index No. 34401/05)

DECISION & ORDER

ORDERED that the appeals from the orders dated February 1, 2008, and November 21, 2008, are dismissed; and it is further,

ORDERED that the appeal from so much of the order dated August 7, 2008, as, after a hearing, in effect, granted that branch of the plaintiff's motion which was for an award of costs, including an attorney's fee, pursuant to 22 NYCRR 130-1.1 and directed the defendant Regina Felton to pay costs to the plaintiff in the principal sum of $40,600.50 is dismissed; and it is further,

ORDERED that the order dated March 28, 2008, is affirmed; and it is further,

ORDERED that the order dated August 7, 2008, is affirmed insofar as reviewed; and it is further,

ORDERED that the money judgment is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The appeals from the orders dated February 1, 2008, and November 21, 2008, must be dismissed. An order which directs a judicial hearing to aid in the disposition of a motion is not appealable as of right because it does not decide the motion, and does not affect a substantial right (see Akerman v Akerman, 53 AD3d 633; D'Agnese v Spinelli, 308 AD2d 561, 562; Aw v Aw, 305 AD2d 344, 345), and leave to appeal has not been granted. Further, any appeal from the order dated November 21, 2008, would be academic, as that order was vacated by an order of the same court dated December 5, 2008 (see Canarelli v Canarelli, 58 AD3d 658, 658-659).

The appeal from so much of the order dated August 7, 2008, as, after a hearing, in effect, granted that branch of the plaintiff's motion which was for an award of costs, including an attorney's fee, pursuant to 22 NYCRR 130-1.1 and directed the defendant Regina Felton to pay costs to the plaintiff in the principal sum of $40,600.50 must be dismissed, as that portion of the order was superseded by the money judgment dated October 2, 2008 (see Matter of Aho, 39 NY2d 241). The issues raised on the appeal from that portion of the order have been considered on the appeal from the money judgment (see CPLR 5501[a][v]).

In February 2005 the plaintiff and the defendant Hulbert Archer entered into a contract for the plaintiff's purchase of real property owned by Archer. In April 2005 the plaintiff tendered a down payment check in the amount of $30,000 to Archer's attorney, the defendant Regina Felton, to be held by Felton in escrow until closing occurred or the contract was terminated. By letter dated October 28, 2005, the plaintiff's attorney notified Felton that Archer had breached his obligations under the ...


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