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Joseph Hayon, Appellant v. Osher Levovitz

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


March 7, 2012

JOSEPH HAYON, APPELLANT,
v.
OSHER LEVOVITZ, RESPONDENT.

Appeals from orders of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered April 14, 2010 and June 4, 2010, respectively.

Hayon v Levovitz

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 7, 2012

PRESENT: PESCE, P.J., WESTON and RIOS, JJ

The order entered April 14, 2010, insofar as appealed from, denied plaintiff's motion for summary judgment. The order entered June 2, 2010, insofar as appealed from, upon, in effect, granting plaintiff's motion for leave to reargue his prior motion, adhered to the prior determination.

ORDERED that the appeals are dismissed.

In this small claims action, plaintiff appeals from so much of an order entered April 14, 2010 as denied his motion for summary judgment, and from so much of an order entered June 2, 2010 as, upon reargument, adhered to the prior determination.

CCA 1807 provides that "[a] person commencing an action upon a small claim under this article shall be deemed to have waived all right to appeal, except that either party may appeal on the sole grounds that substantial justice has not been done between the parties according to the rules and principles of substantive law." Since an order in a small claims action denying a motion for summary judgment only has the effect of requiring a party to proceed to trial, it is not a denial of substantial justice and, thus, the instant order is not appealable (see Feinstein v Lagios, 12 Misc 3d 128[A], 2006 NY Slip Op 50917[U] [App Term, 2d and 11th Jud Dists 2006]; Grossman v Beato, 10 Misc 3d 145[A], 2006 NY Slip Op 50138[U] [App Term, 9th & 10th Jud Dists 2006]).

Accordingly, the appeals must be dismissed. The appeal from so much of the April 14, 2010 order as denied plaintiff's motion for summary judgment must be dismissed on the additional ground that this portion of the order was superseded by the order entered June 2, 2010. Pesce, P.J., Weston and Rios, JJ. concur.

Decision Date: March 07, 2012

20120307

© 1992-2012 VersusLaw Inc.



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