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BETTY ANN D'AGNESE, f/k/a BETTY ANN PINCKNEY, appellant, v. DIANA SPINELLI, respondent.

DECISION ORDER

ORDERED that the appeal from the order dated August 19, 2002, is dismissed; and it is further,

ORDERED that the order dated October 7, 2002, is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the defendant.

The appeal from the order dated August 19, 2002, must be dismissed. An order which directs a judicial hearing to aid in the disposition of a motion is not appealable as of right because it does not decide the motion, and does not affect a substantial right ( see Aw v. Aw, 305 A.D.2d 344, 345; Rosen v. Swarzman, 296 A.D.2d 392; Kogler v. Nassau County Med. Ctr., 289 A.D.2d 298; Matter of New York Presbyt. Hosp., 276 A.D.2d 558), and leave to appeal has not been granted.

The additional evidence the plaintiff submitted in support of her "second" motion for summary judgment was insufficient to resolve the issues of fact which this court identified in affirming the denial of her previous motion ( see D'Agnese v. Spinelli, 290 A.D.2d 528). Accordingly, the motion for summary judgment was properly denied.

SMITH, J.P., KRAUSMAN, LUCIANO and CRANE, JJ., concur.

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D'AGNESE v. SPINELLI
(Sep 29, 2003)