Smith v. Azzarella

Smith v Azzarella (2023 NY Slip Op 04033) Smith v Azzarella 2023 NY Slip Op 04033 Decided on July 28, 2023 Appellate Division, Fourth Department 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. Decided on July 28, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department PRESENT: SMITH, J.P., PERADOTTO, CURRAN, MONTOUR, AND OGDEN, JJ. 455 CA 21-01132 [*1]DEBRA D. SMITH, PLAINTIFF-APPELLANT, v THOMAS P. AZZARELLA, DEFENDANT-RESPONDENT. DEBRA D. SMITH, PLAINTIFF-APPELLANT PRO SE. Appeal from an order of the Supreme Court, Erie County (Frank A. Sedita, III, J.), entered January 11, 2021. The order, inter alia, referred the matter to a referee to oversee and determine the distribution of personal property. It is hereby ORDERED that said appeal is unanimously dismissed without costs. Memorandum: To the extent that the appeal has not been rendered moot, the order is not appealable as of right (see Valiotis v Bekas, 191 AD3d 1038, 1040 [2d Dept 2021]; Selinger v Selinger, 232 AD2d 471, 471 [2d Dept 1996], lv dismissed 89 NY2d 981 [1997], lv dismissed 90 NY2d 842 [1997], rearg denied 90 NY2d 937 [1997]; Crowley v Hazen, 85 AD2d 928, 928 [4th Dept 1981]; see generally CPLR 5701 [a]), and we decline to treat the notice of appeal as an application for leave to appeal (see CPLR 5701 [c]). Entered: July 28, 2023 Ann Dillon Flynn Clerk of the Court