Venetucci v. Venetucci

In a matrimonial action in which the parties were divorced by judgment of the Supreme Court, Suffolk County (Stark, J.), entered August 11, 1975, the defendant appeals, as limited by his brief, from so much of an order of the same court (Leis, J.), dated January 26, 1988, as denied his motion to modify the judgment of divorce by deleting the provision thereof which granted the plaintiff exclusive possession of the parties’ former marital residence. Ordered that the order is affirmed insofar as appealed from, with costs. Initially, we note that the defendant’s motion to modify the parties’ divorce judgment was denied with "leave to resubmit his application upon whatever additional facts he deems appropriate”. Contrary to the plaintiff’s contention, this order, which was the functional equivalent of an order denying the defendant’s motion for relief without prejudice to renewal, is appealable as of right by the defendant (see, CPLR 5701 [a] [2] [v]; Winn v Warren Lbr. Co., 11 AD2d 713; cf., Bird v Bird, 111 AD2d 204). However, we agree with the Supreme Court that the defendant’s motion was properly denied. As conceded by the defendant, the judgment of divorce, which he sought to modify, as well as the parties’ judgment of separation and their stipula 473 tion entered into in open court, which was the basis for the separation and divorce, were not submitted as part of his motion papers. The failure to include these documents, which are necessary to determine the defendant’s motion (see, Surlak v Fulfree, 145 AD2d 79), precludes us from granting the defendant any relief on this appeal. Mangano, J. P., Brown, Lawrence, Kooper and Harwood, JJ., concur.