ADC Orange, Inc. v. Coyote Acres, Inc.

In an action for specific performance of a contract for the sale of real property, the defendant appeals (1) from an order of the Supreme Court, Orange County (Mc-Guirk, J.), dated November 25, 2003, which denied its cross motion to vacate a judgment of the same court entered March 4, 2003, awarding the plaintiff specific performance of the contract, (2) from a second order of the same court also dated November 25, 2003, which granted the plaintiffs motion to schedule a closing to the extent of directing the Orange County Sheriff to deliver a deed to the subject property to the plaintiff upon proof that the balance of the purchase price in the sum of $500,000 was paid into the court (3), as limited by its brief, from so much of an order of the same court dated April 14, 2004, as, upon the granting of that branch of the plaintiffs motion which was to disburse to a nonparty judgment creditor certain money paid into the court, sua sponte, awarded the judgment creditor only $80,667 in interest, and granted its cross motion to direct the plaintiff to reconvey approximately 57.28 acres of land to it only to the extent of directing that Lot 23 comprised of 48.461 acres of land be reconveyed to it, and (4), as limited by its brief, from so much of a second order of the same court also dated April 14, 2004, as, sua sponte, directed the payment of the sum of only $80,667 in interest to the nonparty judgment creditor.

Ordered that the appeal from the first order dated November 25, 2003, which denied the defendant’s cross motion to vacate the judgment entered March 4, 2003, and the appeal from so much of the first order dated April 14, 2004, as directed that only 48.461 acres of land be reconveyed to the defendant, are dismissed as academic, without costs or disbursements, in light of our determination of the related appeal reversing the judgment (see ADC Orange, Inc. v Coyote Acres, Inc., 20 AD3d 493 [2005] [decided herewith]); and it is further,

Ordered that the appeals from so much of the orders dated April 14, 2004, as, sua sponte, awarded the judgment creditor only $80,667 in interest and directed the payment thereof, are dismissed, without costs or disbursements, as no appeal lies as of right from an order that does not decide a motion made on notice, and leave to appeal has not been granted (see CPLR 5701 [a] [2]); and it is further,

Ordered that the second order dated November 25, 2003, granting the plaintiffs motion to schedule a closing to the extent of directing the Orange County Sheriff to deliver a deed to the subject property to the plaintiff upon proof that $500,000 was paid into the court, is reversed, without costs or disbursements, in light of our determination of the related appeal reversing the judgment (see ADC Orange, Inc. v Coyote Acres, Inc., 20 AD3d 493 [2005] [decided herewith]), and the matter is remitted to the Supreme Court, Orange County, for further proceedings in accordance herewith.

In light of our determination of the related appeal reversing the judgment awarding specific performance of the parties’ real estate sales contract (see ADC Orange, Inc. v Coyote Acres, Inc., 20 AD3d 493 [2005] [decided herewith]), we remit the matter to the Supreme Court, Orange County, for further proceedings that may be necessary to vacate the sale. Florio, J.P., H. Miller, Cozier and Spolzino, JJ., concur.