| Kroemer v Pensgen |
| 2007 NYSlipOp 02212 |
| March 16, 2007 |
| Appellate Division, Fourth Department |
| Kent A. Kroemer, Appellant, v Donna Pensgen, Respondent. (Appeal No. 1.) |
—[*1]
Appeal from an order (denominated judgment) of the Supreme Court, Orleans County (James P. Punch, A.J.), dated October 13, 2005 in a breach of contract action. The order denied plaintiff's motion for an order on an issue of fact.
It is hereby ordered that said appeal be and the same hereby is unanimously dismissed without costs.
Memorandum: In this breach of contract action, plaintiff appeals from an order denying his "Motion for an Order on Issue of Fact." The order is not appealable as of right, and we decline to grant plaintiff leave to appeal sua sponte (see CPLR 5701 [a], [c]). We therefore dismiss the appeal. It is well settled that an order that does not involve some part of the merits or affect a substantial right of the parties is not appealable as of right (see CPLR 5701 [a] [2] [iv], [v]; see generally Shahram v St. Elizabeth School, 21 AD3d 1377, 1378 [2005]; Schaner v Mercy Hosp. of Buffalo, 16 AD3d 1095, 1097 [2005]; Scalp & Blade v Advest, Inc., 309 AD2d 219, 224-225 [2003]). In addition, "[t]he courts of New York do not issue advisory opinions for the fundamental reason that in this State [t]he giving of such opinions is not the exercise of the judicial function. The role of the judiciary is to give the rule or sentence, and thus the courts may not issue judicial decisions that can have no immediate effect and may never resolve anything" (Cuomo v Long Is. Light. Co., 71 NY2d 349, 354 [1988] [citations and internal quotation marks omitted]). Based upon the record before us, we are unable to conclude that the denial of plaintiff's motion affected a substantial right of the parties or that the motion sought a determination resolving an actual controversy involving the merits of this action. Present—Scudder, P.J., Martoche, Smith, Peradotto and Pine, JJ.