Appellate Division: Second Judicial Department

M89025

E/sl

WILLIAM F. MASTRO, J.P.

JOSEPH COVELLO

RUTH C. BALKIN

JOHN M. LEVENTHAL, JJ.

2009-04846, 2009-04850 Jacqueline Rose, plaintiff, v Thomas Rose, defendant. (Index No. 33527-06)

DECISION & ORDER ON MOTION

Motion by Jacqueline Rose for leave to appeal to this court from an order of the Supreme Court, Suffolk County, dated December 24, 2008, a report of a referee dated April 30, 2009, and, in effect, to stay enforcement of the order and referee's report, pending hearing and determination of the appeals, and to consolidate the appeals.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the branch of the motion which is for leave to appeal is denied; and it is further,

ORDERED that on the court's own motion, the appeal from the order dated December 24, 2008 (Appellate Division Docket No. 2009-04850), is dismissed, without costs or disbursements, on the ground that no appeal lies as of right from an order that is not the result of a motion made on notice (see CPLR 5701; 5011), without prejudice to taking an appeal from the judgment of divorce once entered; and it is further,

ORDERED that on the court's own motion, the appeal from the referee's report dated April 30, 2009 (Appellate Division Docket No. 2009-04846), is dismissed, without costs or disbursements, on the ground that the referee's report is not appealable (see Levy v Levy, 20 AD3d 511); and it is further,

ORDERED that the motion is otherwise denied as academic.

MASTRO, J.P., COVELLO, BALKIN and LEVENTHAL, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court