
    Sarah Schwarz, Respondent, v Charles Schwarz, Appellant.
    [618 NYS2d 225]
   —In a matrimonial action in which the parties were divorced by judgment dated April 24, 1972, the defendant appeals (1) from an order of the Supreme Court, Queens County (Leviss, J.), dated October 1, 1992, which denied his motion to adjudge the plaintiff in contempt of court for her failure to comply with a provision in the judgment of divorce which directed her to sell the parties’ cooperative apartment, upon her remarriage, and (2) as limited by his brief, from so much of an order of the same court, dated November 9, 1992, as, upon reargument, adhered to the prior determination.

Ordered that the appeal from the order dated October 1, 1992, is dismissed, without costs or disbursements, as that order was superseded by the order dated November 9, 1992, made upon reargument; and it is further,

Ordered that the order dated November 9, 1992, is reversed insofar as appealed from, on the law, without costs or disbursements, the order dated October 1, 1992, is vacated, and the matter is remitted to the Supreme Court, Queens County, for a hearing in accordance herewith.

Since the parties’ submissions created factual disputes which could not be resolved on the papers alone (cf., Matter of Benny v Benny, 199 AD2d 384, 388; Bell v Bell, 181 AD2d 978), the court erred in determining the defendant’s motion in the absence of a hearing. Bracken, J. P., Balletta, Ritter, Pizzuto and Florio, JJ., concur.  