Opinion
June 5, 1989
Appeal from the Supreme Court, Suffolk County (Stark, J., Leis, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
Initially, we note that the defendant's motion to modify the parties' divorce judgment was denied with "leave to resubmit his application upon whatever additional facts he deems appropriate". Contrary to the plaintiff's contention, this order, which was the functional equivalent of an order denying the defendant's motion for relief without prejudice to renewal, is appealable as of right by the defendant (see, CPLR 5701 [a] [2] [v]; Winn v Warren Lbr. Co., 11 A.D.2d 713; cf., Bird v. Bird, 111 A.D.2d 204).
However, we agree with the Supreme Court that the defendant's motion was properly denied. As conceded by the defendant, the judgment of divorce, which he sought to modify, as well as the parties' judgment of separation and their stipulation entered into in open court, which was the basis for the separation and divorce, were not submitted as part of his motion papers. The failure to include these documents, which are necessary to determine the defendant's motion (see, Surlak v Fulfree, 145 A.D.2d 79), precludes us from granting the defendant any relief on this appeal. Mangano, J.P., Brown, Lawrence, Kooper and Harwood, JJ., concur.