Neama v. Town of Babylon

—In a proposed class action by commercial property owners to recover a portion of a special tax assessment, the defendants appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated August 19, 1998, which, upon granting the plaintiffs’ motion for reargument of their prior motion for class certification and partial summary judgment on the complaint, and the defendants’ cross motion for summary judgment dismissing the complaint, vacated so much of its prior order dated August 21, 1997, as denied the plaintiffs’ motion for class certification and partial summary judgment on the complaint and granted the defendants’ cross motion for summary judgment dismissing the complaint, and directed a hearing on the issues of whether the plaintiffs were overcharged and, if so, whether they are entitled to a refund, and held the motion for class certification in abeyance. Ordered that the appeal is dismissed, with costs. While an order granting reargument is appealable, here, upon granting reargument, the Supreme Court did not decide the defendants’ cross motion for summary judgment or the plaintiffs’ motion for summary judgment, but directed a limited hearing on the motions. It is well settled that no appeal lies as of right from an order directing a hearing to aid in the disposition of a motion since such an order does not affect a substantial right (see, CPLR 5701 [a] [2] [v]; Marine Midland Bank v Rashid, 259 AD2d 739; Matter of Town of Babylon v Taxpayer’s Recovery Corp., 240 AD2d 417). Similarly, upon vacating its denial of the plaintiffs’ motion for class certification, the Supreme Court did not decide that motion but held it in abeyance pending the outcome of the hearing (see, CPLR 5701 [a] [2]; Matter of Fritsch v Westchester County Dept. of Transp., 170 AD2d 602; Abrahamsen v Brockway Glass Co., 119 AD2d 612). Consequently, we dismiss the appeal. Bracken, J. P., Joy, Goldstein and Luciano, JJ., concur.