
    Con-Solid Contracting, Inc., Appellant, v Litwak Development Corp. et al., Respondents.
    [698 NYS2d 886]
   —In an action to recover damages for breach of contract, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Posner, J.), dated September 8, 1997, which, upon the plaintiff’s motion to dismiss the affirmative defense of lack of personal jurisdiction, directed a hearing to determine whether the corporate defendants had been properly served, and (2) an order of the same court, dated February 9, 1998, which denied the plaintiffs motion to vacate an order of the same court, dated December 1, 1997, denying the plaintiffs motion to strike the affirmative defense of lack of personal jurisdiction upon the ground that the motion was academic because the action had been discontinued.

Ordered that the appeal from the order dated September 8, 1997, is dismissed, as no appeal lies of right from an order which does not decide a motion made on notice (see, CPLR 5701 [a] [2]); and it is further,

Ordered that the order dated February 9, 1998, is affirmed; and it is further,

Ordered that the respondents are awarded one bill of costs.

Contrary to the plaintiffs contention, the Supreme Court properly denied its motion to vacate the order dated December I, 1997, denying its motion to strike the affirmative defense of lack of personal jurisdiction. The plaintiffs motion to strike the affirmative defense was academic because on November 18, 1997, it had voluntarily discontinued the action. The plaintiff discontinued the action because it was unable to proceed with a hearing to determine whether the corporate defendants had been properly served, and an order discontinuing the action was signed by Justice Posner. Accordingly, the action had been discontinued for over one month before the plaintiff sought, in effect, to reinstate it upon the ground that it was now ready to proceed with the hearing to determine the validity of service of process. Under these circumstances, there was no basis to vacate the December 1, 1997, order and reinstate this discontinued action. O’Brien, J. P., Sullivan, Altman and Krausman, JJ., concur.  