
    Rosemont Enterprises, Inc., Appellant, v Clifford Irving, Respondent, et al., Defendants.
    Argued January 6, 1977;
    decided February 10, 1977
    
      David I. Shivitz, Howard M. Jaffe and Mark A. Pachman for appellant.
    
      
      Harold P. Weinberger and Maurice N. Nessen for respondent.
   Per Curiam.

The question certified does not present a question of law decisive of the correctness of the determination of the Appellate Division. Plaintiff seeks, and has been denied, a modification of an existing preliminary injunction. The remedy requested is equitable in nature; whether to award relief is committed to the discretion of the Supreme Court, and perforce, to the Appellate Division. Since the issue is within the discretionary power of the Appellate Division, our inquiry may proceed no further for no abuse of discretion is claimed or shown. The Appellate Division has denied the plaintiff’s application and, even if the court erred in its statements of law, its conclusion rests also on the alternative ground of discretion. Where the decision could turn, either exclusively or alternatively, on the exercise of discretion, any question of law certified by the Appellate Division could not be considered decisive. (Patrician Plastic Corp. v Bernadel Realty Corp., 25 NY2d 599, 605; Cohen and Karger, Powers of the New York Court of Appeals, § 89, p 384.) To be contrasted is the case where the authority of the Appellate Division is in doubt (Barclay’s Ice Cream Co. v Local No. 757, 41 NY2d 269) or where a persisting reviewable law issue, existing entirely apart from matters of discretion or fact, controls the correctness of the result reached by the court below. Neither situation obtains here and the appeal must be dismissed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in Per Curiam opinion.

Appeal dismissed, without costs. Oral motion to amend record dismissed as academic.  