Category: CCA § 1702

While the dismissal order is not appealable as of right because it
did not decide a motion made on notice (CCA 1702[c]), in the interest
of judicial economy we deem the notice of appeal to be a motion for
leave to appeal and grant such leave (see Alveranga-Duran v Whitehall Apts., 40 AD3d 287 [2007]).

The sua sponte dismissal of plaintiff's complaint at a pre-trial
conference, apparently based on a single, unsigned letter said to have
been written by a representative of nonparty Oxford Insurance Company,
was error. Even assuming the authenticity and admissibility of the
correspondence, at this juncture, it did not conclusively establish a
defense as a matter of law, warranting the drastic measure of an
unsolicited dismissal prior to trial.

To the extent the court denied plaintiffs' oral motion, no appeal as of
right lies from an order which does not decide a motion made on notice,
and the instant motion, although not ex parte, was not made on notice (see CCA 1702 [a] [2]; CPLR 2211; 1223 Bushwick, LLC v Williams, 19 Misc 3d 128[A], 2008 NY Slip Op 50512[U] [App Term, 2d & 11th Jud Dists 2008]; Cucaj v Paramount Fee, L.P., 17 Misc 3d 130[A],
2007 NY Slip Op 51976[U] [App Term, 2d & 11th Jud Dists 2007]). To
the extent the court dismissed plaintiffs' complaint, no appeal lies
from a decision (see Schicchi v Green Constr. Corp., 100 AD2d 509 [1984]).