Appealing a Sua Sponte Order
117 AD3d 621, 985 N.Y.S.2d 875 [1st Dept., 2014]
There is no appeal as of right from an order made sua sponte, and an appeal taken from such an order is subject to dismissal. That does not mean, however, that there is no avenue of redress. The proper avenue is to move on notice to vacate the sua sponte order, and if the motion is denied to appeal from the denial.
Here, Supreme Court, sua sponte, reinstated an order dismissing the complaint on forum non conveniens grounds. (The sequence of events leading to the reinstatement is not specified in the decision.) The plaintiff failed to move to vacate the sua sponte order, and the attempted appeal from the sua sponte order itself was dismissed as not being from an appealable paper.
This issue was before the Court of Appeals in 2003 in Sholes v Meagher, 100 N.Y.2d 333 , where the issue was the appealability of a sua sponte order imposing sanctions on counsel. The Appellate Division dismissed, holding that there was no appeal as of right and declining to grant leave to appeal. The Court of Appeals noted that the purpose of requiring a motion to vacate is to ensure that the appeal is made on a full record.
Contrast these holdings with Weksler v. Weksler, 81 A.D.3d 401 [1st Dept., 2011], where the order under appeal was not truly one made sua sponte, but was rather a clarification of a prior order at a party’s request. The original order prohibited plaintiff’s counsel from viewing certain documents. After a request for a clarification, the court issued a second order disqualifying plaintiff’s counsel, which is of course a material change from the first. The second order was more akin to a resettlement of the original order, and an application for resettlement does not need to be made by notice of motion or order to show cause. Therefore, the second order was appealable.