Nagerl v Nagerl
2007 NY Slip Op 10017 [46 AD3d 1199]
December 20, 2007
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, February 13, 2008

Andrew Nagerl, Respondent, v Melita Nagerl, Appellant.

[*1] Pope, Schrader & Sacco, L.L.P., Binghamton (Kurt D. Schrader of counsel), for appellant.

Carman M. Garufi, Binghamton, for respondent.

Cardona, P.J. Appeal from an amended order of the Supreme Court (Lebous, J.), entered February 28, 2007 in Tioga County, which, among other things, granted plaintiff's motion for summary judgment.

The parties were married in September 1999. Plaintiff commenced this action for divorce in March 2006 on the grounds of cruel and inhuman treatment and abandonment. Thereafter, he discontinued his abandonment cause of action and moved for summary judgment on the remaining ground of cruel and inhuman treatment. Although Supreme Court initially granted that motion, issuing a judgment of divorce, the court subsequently sua sponte vacated that judgment. The court thereafter issued an amended order again granting the motion, but directed that the judgment dissolving the marriage would not be entered until equitable distribution was resolved. Defendant appeals.

Domestic Relations Law § 236 (B) (5) (a) states that "the court, in an action wherein all or part of the relief granted is divorce, . . . shall determine the respective rights of the parties in their separate or marital property, and shall provide for the disposition thereof in the final judgment." Since the amended order appealed from herein is interlocutory and failed to render a final award of equitable distribution, that order "is nothing more than a decision stating the intention on the part of the court to divorce the parties in the future and, as such, is both [*2]nonbinding and nonfinal" (Sullivan v Sullivan, 174 AD2d 862, 862 [1991]; see Garcia v Garcia, 178 AD2d 683, 683 [1991]). Accordingly, the subject appeal must be dismissed.[FN*]

Mercure, Crew III, Carpinello and Lahtinen, JJ., concur. Ordered that the appeal is dismissed, without costs.


Footnote *: In doing so, we decline defendant's request that this Court consider the merits of her appeal by departing from its established case law and adopt the rationale of the Fourth Department in Zack v Zack (183 AD2d 382 [1992]).