Key Bank of Western New York, N. A. v. Kessler Graphics Corp. , 608 N.Y.S.2d 21 ( 1993 )

Order unanimously reversed on the law without costs and motion denied. Memorandum: Supreme Court abused its discretion by entering an order of restitution following this Court’s modification of Supreme Court’s order granting summary judgment to plaintiff. This Court’s order did not finally determine the rights of the parties, but determined only that factual issues existed requiring a trial. Because plaintiff, with the movants’ knowledge, had already sold the stock pursuant to Supreme Court’s prior order, because the case was on the trial calendar, and because the moving parties submitted no evidence that plaintiff would be unable to purchase replacement shares of stock if plaintiff were ultimately unsuccessful upon a trial of the action, Supreme Court’s granting of an order of restitution before the issue was finally determined was premature and an abuse of discretion. Our determination herein renders moot plaintiff’s appeal from Supreme Court’s order denying its motion for renewal. (Appeal from Order of Supreme Court, Erie County, Flaherty, J. —Restitution.) Present—Denman, P. J., Lawton, Doerr and Davis, JJ.