Opinion
June 25, 1990
Appeal from the Supreme Court, Richmond County (Radin, J.H.O.).
Ordered that the order and judgment is affirmed, with costs.
The record does not support the defendant's assertion that the trial court improvidently exercised its discretion in refusing to hold the plaintiff in contempt, as neither party exercised reasonable efforts to effectuate the sale of the marital residence in accordance with repeated orders of the court (see, Garrison Fuel Oil v. Grippo, 127 Misc.2d 275). In addition, the defendant has failed to demonstrate the requisite prejudice to his rights to support a finding of civil contempt (see, Judiciary Law § 753 [A] [3]; City of Poughkeepsie v. Hetey, 121 A.D.2d 496).
Because the defendant never moved for a downward modification of the plaintiff's maintenance award, and simply allowed the arrears to accrue, the trial court properly entered judgment for the arrears. The defendant failed to demonstrate good cause for his failure to apply for downward modification prior to the accrual of the arrears (Domestic Relations Law § 236 [B] [9] [b]; Maloney v. Maloney, 137 A.D.2d 666; Penziner v. Penziner, 123 A.D.2d 674).
Concerning the defendant's challenge to a portion of an order of the same court dated December 23, 1988, directing that a hearing be held on the issue of the plaintiff's counsel fees, we note that no appeal from that order is before us. The order and judgment appealed from does not address the question of counsel fees; therefore that issue is not brought up for review on the appeal from the order and judgment. In any case, no appeal as of right lies from an order directing a hearing (see, Bagdy v Progresso Foods Corp., 86 A.D.2d 589). Bracken, J.P., Harwood, Rosenblatt and Miller, JJ., concur.