OPINION OF THE COURT

Memorandum.

The appeal is dismissed, without costs.

Defendant in this partition action appeals from a judgment of the Supreme Court, Monroe County, which was necessarily affected by an order of the Appellate Division on a prior appeal in the action. Defendant bases his appeal as of right pursuant to CPLR 5601 (subd [d]), on the fact that the prior nonfinal order of the Appellate Division modified an order of the Supreme Court and thus apparently would have been appealable as a matter of right under CPLR 5601 (subd [a], par [iii]) but for the lack of finality.

The Appellate Division modification, however, was based on that court’s power to exercise its discretion to determine the appropriate distribution of the proceeds of a partition sale, an action for partition being equitable in *894nature. As there is nothing in the record to suggest that the court abused its discretion as a matter of law or that the result is so outrageous as to shock the conscience, the modification was a nonreviewable act of discretion and the order is thus not appealable as of right (Patron v Patron, 40 NY2d 582).

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed, without costs, in a memorandum.