CPLR § 5701

Appealable sua sponte order

Yi Jing Tan v Liang, 2018 NY Slip Op 02497 [2d Dept 2018]

The plaintiffs were awarded a default judgment, and an inquest on damages was directed. The inquest was scheduled for November 18, 2015, and the parties appeared for the inquest on that day. The Supreme Court adjourned the matter to the next day, November 19, 2015, over the plaintiffs' objection and despite a request of the plaintiffs' counsel for an adjournment to a different day because she was unavailable on November 19. On November 19, 2015, the plaintiffs were represented by a per diem attorney, who was unprepared to proceed with the inquest. The court, sua sponte, directed dismissal of the complaint pursuant to 22 NYCRR 202.27. The plaintiffs appeal.

A sua sponte order is appealable if leave to appeal is granted (see CPLR 5701[c]). Moreover, although the order appealed from was entered upon the plaintiffs' purported default, the issues of the plaintiffs' lack of readiness to proceed, and whether it was excusable, were "the subject of contest below" (Matter of Andrew J.U.M. [Jelaine E.M.], 154 AD3d 758, 759 [internal quotation marks omitted]; see James v Powell, 19 NY2d 249, 256 n 3) and, therefore, are subject to review on appeal.

Pursuant to 22 NYCRR 202.27(b), a court has the discretion to direct dismissal of a complaint where the plaintiff fails to appear or is not ready to proceed. Here, the Supreme Court based its decision to dismiss the complaint upon the plaintiffs' lack of readiness to proceed on November 19, 2015, a date to which the court adjourned the matter despite its awareness that the plaintiffs' counsel would not be available. Under the circumstances presented, the court improvidently exercised its discretion in, sua sponte, directing dismissal of the complaint (see Bank of N.Y. v Castillo, 120 AD3d 598, 599).

5701 and Appellate Procedure

CPLR § 5701 Appeals to appellate division from supreme and county courts

US Bank Natl. Assn. v Cange, 2012 NY Slip Op 04735 (2nd Dept. 2012)

The appeal from the order dated September 20, 2011, must be dismissed, as it was superseded by the order entered December 22, 2011. In any event, "[a]n order directing a hearing to aid in the determination of a motion does not dispose of the motion and does not affect a substantial right, and therefore is not appealable as of right" (Kornblum v Kornblum, 34 AD3d 749, 751; see CPLR 5701[a][2][v]; Iodice v City of White Plains, 60 AD3d 730) and leave to appeal from the order dated September 20, 2011, was not granted.

Baez v First Liberty Ins. Corp., 95 AD3d 1250 (2nd Dept. 2012)

The defendant appeals from so much of the order as made that determination. The appeal must be dismissed, however, as findings of fact and conclusions of law are not independently appealable (see Soehngen v Soehngen, 58 AD3d 829, 830 [2009]; Higgins v Higgins, 50 AD3d 852, 852 [2008]; Cosh v Cosh, 45 AD3d 798, 799 [2007]; Griggs v Griggs, 44 AD3d 710, 711 [2007]; ELRAC, Inc. v Belessis, 303 AD2d 445, 446 [2003]; Naar v Litwak & Co., 260 AD2d 613, 614 [1999]).

CPLR 5513 5701 5526 3212b 5501

CPLR R. 5513 Time to take appeal, cross-appeal or move for permission to appeal

CPLR § 5701 Appeals to appellate division from supreme and county courts

CPLR R. 5526 Content and form of record on appeal

CPLR § 5501 Scope of review

CPLR R. 3212 Motion for summary judgment

Fazio v Costco Wholesale Corp., 2011 NY Slip Op 04740 (App. Div., 1st 2011)

We reject plaintiffs' contention that the appeal is untimely because defendant filed its notice of appeal 32 days after it was served electronically with notice of the entry of the order (see CPLR 5513[a]). A New York State Court Electronic Filing (NYSCEF) site confirmation shows the date on which the order with notice of entry was filed electronically and e-mail notifications were sent to counsel for the parties. However, the NYSCEF site's transmission of notification of the entry to e-mail service addresses "shall not constitute service of notice of entry by any party" (22 NYCRR 202.5b[h][3]). "A party shall serve notice of entry of an order . . . on another party by serving a copy of the notification . . . and an express statement that the transmittal constitutes notice of entry" (id.). The only affidavit of service in the record shows that the notice of entry was served on defendant by mail. Thus, defendant had 35 days to notice its appeal (see CPLR 2103[b][2]).

Gross v 141-30 84th Rd. Apt. Owners Corp., 2011 NY Slip Op 04746 (App. Div., 1st 2011)

Although Supreme Court's order was not appealable as of right because it did not decide a motion made on notice (see CPLR 5701[a][2]), in the interest of judicial economy, we nostra sponte deem the notice of appeal a motion for leave to appeal and grant the motion (see CPLR 5701[c]; Winn v Tvedt, 67 AD3d 569 [2009]).

Supreme Court erred in granting plaintiff's application, since plaintiff failed to show that defendants' noncompliance with the court's discovery orders was "willful, contumacious or due to bad faith" (Weissman v 20 E. 9th St. Corp., 48 AD3d 242, 243 [2008]; Dauria v City of New York, 127 AD2d 459, 460 [1987]). Indeed, the record shows that defendants provided plaintiff with the discovery owed pursuant to Supreme Court's most recent order. Prior to that order, most of the delays in the discovery schedule were due to plaintiff's actions. Where, as here, delays in discovery were caused by both parties' actions, the unilateral and drastic sanction of striking the pleadings is inappropriate (Daimlerchrysler Ins. Co. v Seck, 82 AD3d 581 [2011]; Sifonte v Carol Gardens Hous. Co., 70 AD2d 563, 564 [1979]).

Block 6222 Constr. Corp. v Sobhani, 2011 NY Slip Op 04614 (App. Div., 2nd 2011)

"It is the obligation of the appellant to assemble a proper record on appeal, which must contain all of the relevant papers that were before the Supreme Court" (Wen Zong Yu v Hua Fan, 65 AD3d 1335, 1335; see CPLR 5526; Cohen v Wallace & Minchenberg, 39 AD3d 689; Matter of Remy v Mitchell, 60 AD3d 860). Since, under the circumstances, the record here is inadequate to enable this Court to render an informed decision on the merits, the appeal must be dismissed (see Emco Tech Constr. Corp. v Pilavas, 68 AD3d 918, 918-919; Matter of Allstate Ins. Co. v Vargas, 288 AD2d 309, 310).

Cocom-Tambriz v Surita Demolition Contr., Inc., 2011 NY Slip Op 04622 (App. Div., 2nd 2011)

Moreover, this Court has the authority to search the record and award summary judgment to a nonmoving party with respect to an issue that was the subject of the motion before the Supreme Court (see CPLR 3212[b]; Harsch v City of New York, 78 AD3d 781, 784; Nassau Plaza Assoc., L.P. v Greater N.Y. Mut. Ins. Co., 74 AD3d 1159, 1160). Accordingly, upon searching the record, we award summary judgment to the defendants third-party plaintiffs on the issue of whether the plaintiff sustained a grave injury.

Williams v New York City Health & Hosps. Corp., 2011 NY Slip Op 04662 (App. Div., 2nd 2011)

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

CPLR § 5511 and CPLR § 5701

CPLR § 5511 Permissible appellant and respondent

Santos v County of Westchester, 2011 NY Slip Op 01013 (App. Div., 2nd 2011)

The appeal by the County defendants must be dismissed. Since they did not oppose the City's cross motion before the Supreme Court, they are not aggrieved by the order appealed from (see CPLR 5511).

CPLR § 5701 Appeals to appellate division from supreme and county courts

Wright v Stam, 2011 NY Slip Op 01020 (App. Div., 2nd 2011)

ORDERED that the appeal from so much of the order as granted that branch of the motion which was to appoint a guardian ad litem on the plaintiff's behalf only to the extent of directing a hearing on that issue is dismissed, as no appeal lies as of right from an order directing a hearing to aid in the determination of a motion, and we decline to grant leave to appeal (see CPLR 5701[a][2]; Zoref v Glassman, 44 AD3d 1036); and it is further,

ORDERED that the appeal from so much of the order as, sua sponte, directed the plaintiff to undergo a psychological evaluation is dismissed, as no appeal lies as of right from an order which does not determine a motion made on notice, and we decline to grant leave to appeal (see CPLR 5701[a][2]; Ciprijan v Stone, 65 AD3d 659); and it is further,

The bold is mine.

Interesting to Me (CPLR 3215; 4518; 3121; 602; 3018)

Of all the decisions that came out this past week, these are the ones that I read and though, "hey, that's interesting."

New S. Ins. Co. v Dobbins, 2010 NY Slip Op 01773 (App. Div., 2nd, 2010)

The Supreme Court properly, upon renewal and reargument, adhered to so much of its original determination as denied the plaintiff leave to enter judgment against the defendants James Dobbins, Jr., and Felita Dobbins, upon their default in answering the complaint. In support of its motion, the plaintiff offered the complaint, which was verified by plaintiff's counsel, and an affidavit of the plaintiff's investigator, neither of whom possessed personal knowledge of the facts constituting the claim (see CPLR 3215; Woodson v Mendon Leasing Corp., 100 NY2d 62, 70-71; Hosten v Oladapo, 44 AD3d 1006; Finnegan v Sheahan, 269 AD2d 491). The statements from the driver of the other vehicle that the plaintiff's investigator relied upon in his affidavit constituted inadmissible hearsay (see CPLR 4518[a]; Hochhauser v Electric Ins. Co., 46 AD3d 174, 179-183; Metropolitan Cas. Ins. Co. v Shaid, 23 Misc 3d 1140[A]). Accordingly, entry of a default judgment against these defendants was properly denied on the papers before the Supreme Court.

Ok, this one is a little older. I accidentally put it with the others. But since it's already here, I might as well keep it.

Tucker v Bay Shore Stor. Warehouse, Inc., 2010 NY Slip Op 00134 (App. Div., 2nd, 2010)

Contrary to the defendants' contentions, the Supreme Court did not improvidently exercise its discretion in denying that branch of their motion which was to compel the plaintiff to undergo a second independent medical examination. "The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed" (Mattocks v White Motor Corp., 258 AD2d 628, 629 [internal quotation marks and citations omitted]; see Kaplan v Herbstein, 175 AD2d 200). While CPLR 3121 does not limit the number of examinations to which a party may be subjected, a party seeking a further examination must demonstrate the necessity for it (see Young v Kalow, 214 AD2d 559; see also Huggins v New York City Tr. Auth., 225 AD2d 732). Here, the defendants failed to show that a further physical examination of the plaintiff was required. While we strongly disapprove of the plaintiff's counsel instructing the plaintiff to refuse to respond to questions relating to her relevant past medical history, there was no indication by the defendants' examining physician that his prior examination was hindered, or that he required additional information.

Gladstein v Martorella, 2010 NY Slip Op 01732 (App. Div., 1st, 2010)

When parties set down their agreement in a clear, complete document, their writing should, as a rule, be enforced according to its terms. Evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing. Extrinsic and parol evidence are not admissible to create an ambiguity in a written agreement which is complete, clear and unambiguous on its face (see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]).

The agreement herein is unambiguous on its face. Both sale and lease contracts may be utilized in meeting the 75% requirement. "The best evidence of what parties to a written agreement intend is what they say in their writing" (Greenfield v Philles Records, 98 NY2d 562, 569 [2002] [internal quotation marks and citation omitted]). If the parties intended to exclude lease contracts from consideration, they made a mistake in the agreement. "An omission or mistake in a contract does not constitute an ambiguity" (Reiss v Financial Performance Corp., 97 NY2d 195, 199 [2001] [internal quotation marks and citation omitted]).

Progressive Northeastern Ins. Co. v North State Autobahn, Inc., 2010 NY Slip Op 01779 (App. Div., 2nd, 2010)

The Supreme Court did not improvidently exercise its discretion in denying that branch of the defendants' motion which was, in the alternative, to direct that this action be tried jointly with an action entitled North State Autobahn v Progressive Insurance Group, pending in the Supreme Court, Westchester County, under Index No. 02761/07. Inasmuch as the two actions did not involve common questions of law or fact (see CPLR 602[a]), a joint trial was not warranted (see Beerman v Morhaim, 17 AD3d 302, 303).

At the close of the plaintiff's case, which arises out of the defendants' repair of a motor vehicle owned by the plaintiff's insured, the defendants moved for judgment as a matter of law on the ground that the plaintiff had failed to establish a prima facie case (see CPLR 4401). The Supreme Court granted the motion on a ground not argued by the defendants, namely, that the plaintiff's payment of the full amount of the final bill for the repair of the vehicle without asserting that the payment was, in some [*2]manner, "under protest," barred the plaintiff's claims under the doctrine of accord and satisfaction (see Merrill Lynch Realty/Carll Burr, Inc. v Skinner, 63 NY2d 590, 596; Uniform Commercial Code § 1-207). In granting the motion on that ground, the Supreme Court erred in two respects. First, accord and satisfaction is an affirmative defense which must be pleaded and proved (see CPLR 3018[b]; Conboy, McKay, Bachman & Kendall v Armstrong, 110 AD2d 1042; see also Arias-Paulino v Academy Bus Tours, Inc., 48 AD3d 350; Dec v Auburn Enlarged School Dist., 249 AD2d 907, 908). The defendants did not plead accord and satisfaction as an affirmative defense, and it was improper for the Supreme Court to raise it sua sponte (see Trustco Bank N.Y. v Cohn, 215 AD2d 840, 841; cf. Rienzi v Rienzi, 23 AD3d 450). Second, the doctrine of accord and satisfaction is not applicable because it contemplates full knowledge of the facts on the part of both parties who, in effect, enter into a new contract to expeditiously settle a contract dispute (see Horn Waterproofing Corp v Bushwick Iron & Steel Co., 66 NY2d 321, 325). In this action, inter alia, to recover damages for fraud, the gravamen of the plaintiff's claim is that it was without such knowledge because of the defendants' alleged misrepresentation of material facts. Thus, a new trial is warranted.

We note that, upon retrial, the plaintiff should not be limited to damages in the sum of $2,808.65, the amount of the allegedly fraudulent charges contained in the final bill of the defendant North State Autobahn, Inc., d/b/a North State Custom Auto, but rather to the amount sought in the complaint.

Another older one.

Simmons v New York City Health & Hosps.
Corp., 2010 NY Slip Op 01692 (App. Div., 1st, 2010)

The motion court, by declining to grant defendant's motion to dismiss the complaint and ordering discovery, limited to plaintiff's assertion of the insanity toll, necessarily rejected defendant's res judicata defense. Thus, the order at issue, at least to the extent that it denied defendant's motion to dismiss on grounds of res judicata is appealable insofar as it affects a substantial right (see Fellner v Morimoto, 52 AD3d 352, 353 [2008]; CPLR 5701[a][2][v]).

However, contrary to the lower court's implicit conclusion the instant action is in fact barred by res judicata. Plaintiff's prior action was against a doctor employed by defendant, arose from the same course of treatment alleged in the instant action, and was dismissed on statute of limitations grounds. While defendant was not a party to the prior action, as defendant doctor's employer, required to indemnify defendant doctor in the prior action, it was in privy with defendant doctor (Beuchel v Bain, 97 NY2d 295, 304-305 [2001], cert denied 535 US 1096 [2002]; Prospect Owners Corp. v Tudor Realty Servs., 260 AD3d 299 [1999]), the real party in interest in that action (Ebert v New York City Health and Hosp. Corp., 82 NY2d 863, 866-867 [1993]), and the abbreviated statute of limitations applicable to defendant was thus applied to him (see International Shared Servs. v County of Nassau, 222 AD2d 407, 408 [1995]; Urraro v Green, 106 AD2d 567 [1984]). Plaintiff cannot avoid res judicata by varying facts, changing his causes of action and omitting references to the previously named doctor (see Reilly v Reed, 45 NY2d 24, 28-30 [1978]; Marinelli v Assocs. v Helmsley Noyes Co., 265 AD2d 1 [2000]).

The bold, that I will eventually use, will be mine.

Appellate Procedure: I don’t know why, but I kind of like this decision

CPLR § 5701 Appeals to appellate division from supreme and county courts
(a) Appeals as of right
(2) from an order not specified in subdivision (b), where the motion it decided was made upon notice…

Reyes v Sequeira, 2009 NY Slip Op 05986 (App. Div., 1st, 2009)

Supreme Court requested appraisals for both parcels from Skyline Appraisals Inc. and [*3]East
Coast Appraisals, and the appraisals were performed. While neither
party objected to the appraisals performed by Skyline, defendant sent a
letter to Supreme Court objecting to the appraisal performed by East
Coast. Defendant was concerned that the East Coast appraisal was
inaccurate and greatly undervalued the parcels. Defendant requested a
conference between the parties and the court to "resolve" issues
relating to the East Coast appraisal; no motion was made by either
party for any relief.

…

Without the prompting of a motion, Supreme Court determined the value of the parcels.

…

The court did not discuss the terms of the stipulation of settlement
that required the court to determine the value of the properties by
averaging two appraisals, and did not explain how its decision
to average the three appraisals was consonant with the terms of
stipulation of settlement. Nor did the court explain why it believed
that one of the valuation methods was to discard the lowest and highest
appraisals, a method that would entail no averaging. This appeal by
defendant ensued.

Prior to oral argument on this appeal, defendant moved to vacate the
stipulations of settlement — both defendant and the court that heard
and decided that motion treated the court's August 7, 2007
on-the-record statements as a stipulation; plaintiff, however, asserts
that the court gave directives to which the parties did not stipulate.
After oral argument of the appeal, Supreme Court granted the motion to
vacate. The court concluded that no binding stipulations existed, and
stated that the parties were free to conduct disclosure and file a note
of issue when the matter was ready for trial. Thus, although the order
appears not to have expressly vacated the order on appeal determining
the value of the properties, it implicitly does so (see generally Banker v Banker, 56 AD3d 1105, 1107 [2008]; Savino v "ABC Corp.," 44 AD3d 1026, 1027 [2007]; Matter of Jefferson County Dept. of Social Servs. v Mark L.O., 12 AD3d 1037, 1037-1038 [2004], lv denied
4 NY3d 794 [2005]). Moreover, of course, the order on appeal depends
entirely on the existence and validity of the stipulations.

Regardless of whether Supreme Court correctly vacated the stipulations that are the [*5]subject
of this appeal, the stipulations have been vacated and this appeal is
moot because the rights of the parties cannot be affected by a
determination of this appeal (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]; see Matter of Feustel v Rosenblum,
6 NY3d 885 [2006] ["Appeal taken as of right from the Appellate
Division judgment . . . and motion for leave to appeal from said
judgment . . . dismissed as moot upon the ground that the judgment of
the Appellate Division has been vacated by a subsequent order of that
Court"]; Matter of Rodriguez v Johnson, 45 AD3d 279 [2007], lv denied 10 NY3d 705 [2008] ["Petitioner's appeal is moot because Supreme Court vacated the judgment on appeal"]; Fidata Trust Co. Mass. v Leahy Bus. Archives, 187 AD2d 270, 271 [1992] ["The order on appeal was subsequently vacated and thus rendered moot"]; see also Perez v Morse Diesel Intl., 10 AD3d 497
[2004]; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book
7B, CPLR C5517:1, at 208 [1995] ["If the disposition of [a] motion [to
reargue, renew or vacate an order] does substantially affect the
original order . . . it may have some impact on the appeal. If it
alters the order in such a way as to remove the grievance that accounts
for the appeal, it should abate the appeal"]). Because the appeal has
been rendered moot we cannot and do not pass on the issues presented (see Hearst Corp.,
50 NY2d at 713-714 ["It is a fundamental principle of our jurisprudence
that the power of a court to declare the law only arises out of, and is
limited to, determining the rights of persons which are actually
controverted in a particular case pending before the tribunal. This
principle, which forbids courts to pass on academic,
hypothetical, moot, or otherwise abstract questions, is founded
both in constitutional separation-of-powers doctrine, and in
methodological strictures which inhere in the decisional process of a
common-law judiciary"]).

The dissent asserts that "by ruling that the intervening order
implicitly' vacates the order on appeal, [we] thereby pass[] on a
substantive issue" and "render[] an advisory opinion construing both
the status of the order appealed from and [the] effect of an order not
even before us." As is obvious from our decision, we pass on no
substantive issues relating to the rights of the parties. Equally as
obvious, we are not "rendering an advisory opinion construing both the
status of the order appealed from and [the] effect of an order not even
before us." Rather, we simply conclude that the order on appeal is moot
(and, as discussed below, nonappealable) and therefore the appeal must
be dismissed. Of course, we first conclude that the order vacating the
stipulations implicitly vacates the order on appeal. But that
conclusion merely reflects the exercise of our jurisdiction to
determine our jurisdiction (see United States v Mine Workers, 330 US 258, 291 [1947]).

The dissent states that by moving to vacate the stipulations, defendants "unilaterally prevent[ed] this Court
from deciding whether the motion court erred in vacating what
appears to be a valid agreement between the parties." In the first
place, however, defendants took no "unilateral" action. Defendants made
a motion on notice to vacate the stipulations, a motion Supreme Court
granted. Second, this Court is not precluded from determining whether
the stipulations are valid. To the contrary, we may determine that
precise issue should plaintiff perfect his appeal from the order
vacating the stipulations.

…

The appeal should be dismissed for another reason — it is from a sua sponte order from which no appeal lies (see Sholes v Meagher, 100 NY2d 333 [2003]; Person v Einhorn, 44 AD3d 363 [2007]; Unanue v Rennert, 39 AD3d 289 [2007]; Diaz v New York Mercantile Exch., 1 AD3d 242 [2003]). In Sholes
the Court of Appeals addressed the issue of the appealability of sua
sponte orders. There, an attorney was sanctioned by Supreme Court for
engaging in frivolous conduct in the course of a personal injury case.
From the bench the trial court gave the parties a briefing schedule,
requiring the attorney to submit an affidavit explaining why she should
not be sanctioned for her conduct and directing her adversary to submit
an affidavit detailing his costs and expenditures at trial. After both
sides submitted papers, the trial court ordered the attorney to pay her
adversary approximately $14,000. The attorney appealed to the Second
Department, which dismissed the appeal because the order imposing
sanctions did not decide a motion made on notice (295 AD2d 593 [2002]).

The Court of Appeals granted leave and concluded that the
Second Department had correctly dismissed the appeal. The Court of
Appeals stated that, "[w]ith limited exceptions, an appeal may be taken
to the Appellate Division as of right from an order deciding a motion
made upon notice when — among other possibilities — the order affects a
substantial right. There is, however, no right of appeal from an ex
parte order, including an order entered sua sponte" (100 NY2d at 335
[internal citations omitted]). The Court also stated "[t]hat an order
made sua sponte is not an order deciding a motion on notice is apparent
from various CPLR provisions, including the definition of motion (see
CPLR 2211) and the provision for dismissal for failure to prosecute,
which distinguishes between a court initiative' and a party's motion' (see CPLR 3216)" (id.
at 335 n 2). While the trial court had created a procedure to ensure
that the parties had an opportunity to be heard before the court acted,
the Court stressed that
"the submissions ordered sua sponte by the trial court were not
made pursuant to a motion on notice as contemplated by CPLR 5701(a)(2).
While the procedure in this particular case may well have produced a
record sufficient for appellate review, there is no guarantee that the
same would be true in the next case. Moreover, the amount of notice
will vary from case to case, and its sufficiency may often be open to
debate. Adherence to the procedure specified by CPLR 5701(a) uniformly
provides for certainty, while at the same time affording the parties a
right of [*7]review by the Appellate Division. We are therefore unwilling to overwrite that statute" (id. at 336).

As is evident from the briefs, the record and the attorneys'
statements at oral argument, the order determining the value of the
parcels was not the product of a motion made on notice. Rather, that
order was issued sua sponte and therefore is not appealable as of right
(id.; Person, supra; Unanue, supra; Diaz, supra).

The bold is mine.

Maybe it's the dissent. Maybe it's the procedural wonk in me. Maybe I'm just weird. But I like this decision.

CPLR § 5701(a)(2)

Rabinovich v Shevchenko, 2009 NY Slip Op 05310 (App. Div., 2nd, 2009)

The order appealed from did not determine a motion made on notice, and is therefore not appealable as of right (see CPLR 5701[a][2]; Steven L.Levitt & Assoc., P.C. v Computer Handlers Corp., 7 AD3d 613; Johnson v Ladin, 7 AD3d 674, 675; Stern v Stern, 273 AD2d 298, 299; Cuffie v New York City Health & Hosps. Corp., 260
AD2d 423). No motion for leave to appeal has been made, and under the
circumstances, we decline to grant leave on our own motion (see Independence Constr. Corp. v AMOCO Constr. Corp., 33 AD3d 963; Steven L.Levitt & Assoc., P.C. v Computer Handlers Corp., 7 AD3d 613; Cuffie v New York City Health & Hosps. Corp., 260 AD2d 423).

The bold is mine.

22 NYCRR 130-1.1;

22 NYCRR 130-1.1 Costs; sanctions

(a) Appeals as of right
2. from an order not specified in subdivision

(c) Appeals by permission

CPLR § 5701 Appeals to appellate division from supreme and county courts

RKO Props. Ltd. v Boymelgreen, 2009 NY Slip Op 03709 (App. Div., 2nd, 2009)

"[W]hen parties set down their agreement in a clear, complete
document, their writing should as a rule be enforced according to its
terms'" (Reiss v Financial Performance Corp., 97 NY2d 195, 198, quoting W.W.W. Assoc. v Giancontieri, 77
NY2d 157, 162). Here, contrary to the appellants' contention, the
Supreme Court did not rewrite the parties' stipulation of settlement.
Rather, by directing the appellants to provide the general releases to
the respondents, the court properly enforced the stipulation according
to its terms. By agreeing to the subsequent stipulation and order dated
August 16, 2007, and accepting payment of the settlement amount, the
plaintiff waived any alleged breach of the stipulation of settlement.

The appeal from so much of the order entered January 28, 2008,
as, sua sponte, directed a hearing must be dismissed, as no appeal lies
as of right from an order entered sua sponte or from an order directing
a hearing, and leave to appeal from that portion of the order has not
been granted (see CPLR 5701[a][2], [c]; Shabtai v City of New York, 308 AD2d 532, 533; Matter of Kohn v Lawrence, 240 AD2d 496, 496-497).

Badillo v Badillo, 2009 NY Slip Op 03681 (App. Div., 2nd, 2009)

Under the circumstances herein, the plaintiff did not engage in
sanctionable conduct by opposing the defendant's motion, inter alia, to
vacate a portion of a prior support order (see 22 NYCRR 130-1.1; Rennie-Otote v Otote, 15 AD3d 380, 381; Hamilton v Cordero, 10 AD3d 702, 703; Stow v Stow, 262 AD2d 550, 551; see also Arciniega v Arciniega,
48 AD3d 607). Moreover, the Supreme Court did not follow the proper
procedure for imposing a sanction, since it failed to specify in a
written decision the conduct upon which the award was based, the
reasons why it found the conduct to be frivolous, and the reasons the
sanction was fixed in the sum indicated (see 22 NYCRR 130-1.2; Rennie-Otote v Otote, 15 AD3d at 381; Hamilton v Cordero, 10 AD3d at 703; Miller v DeCongilio, 269 AD2d 504; Gossett v Firestar Affiliates, 224 AD2d 487).
The plaintiff's contention that the Supreme Court improperly
denied her request for sanctions against the defendant is not properly
before this Court (see 22 NYCRR 130-1.1[d]; Kane v Triborough Bridge & Tunnel Auth., 40 AD3d 1040, 1041-1042; Jandru Mats v Riteway AV Corp., 1 AD3d 565, 566; Telemark Constr. v Fleetwood & Assoc., 236 AD2d 462; see also Matter of Mercury Ins. Group v Ocana, 46 AD3d 561, 562).

The bold is mine.

CPLR § 3026; CPLR § 6514; 22 NYCRR 130-1.1; CPLR § 5701; Standing

CPLR § 3026 Construction

CPLR § 6514 Motion for cancellation of notice of pendency

(c) Costs and expenses

22 NYCRR 130-1.1 Costs; sanctions

Congel v Malfitano, 2009 NY Slip Op 03122 (App. Div., 2nd, 2009)

On a motion to dismiss a complaint for failure to state a cause of action, the challenged [*2]pleading is to be construed liberally (see CPLR 3026; Leon v Martinez, 84 NY2d 83, 87; Bernberg v Health Mgt. Sys., 303
AD2d 348, 349). Accepting the facts alleged as true, and according the
plaintiff the benefit of every possible favorable inference, the court
must determine only whether the facts alleged fit within any cognizable
legal theory (see Leon v Martinez, 84 NY2d at 87-88; Bernberg v Health Mgt. Sys., 303
AD2d at 349). However, where, as here, the moving party has submitted
evidentiary material, the court must determine whether the proponent of
the pleading has a cause of action, not whether he or she has stated
one (see Guggenheimer v Ginzburg, 43 NY2d 268, 275; Pincus v Wells, 35 AD3d 569, 570).

The defendant waived the defense of lack of standing by failing
to raise it in his answer or in his initial moving papers to dismiss
the complaint (see Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242; Lewis v Boyce, 31 AD3d 395, 396). In any event, contrary to the defendant's contention, the plaintiffs possess standing (see Benedict v Whitman Breed Abbott & Morgan, 282 AD2d 416, 418; Shea v Hambro Am., 200 AD2d 371, 372).

However, the Supreme Court should not have awarded the
plaintiffs costs and disbursements under CPLR 6514(c). CPLR 6514(c)
authorizes an award of costs and disbursements if the cancellation of
the notice of pendency is made pursuant to that section. Here, however,
the Supreme Court invoked its "inherent power," and not CPLR 6514, to
cancel the notice of pendency (see Nastasi v Nastasi, 26 AD3d 32,
36; 13-65 Weinstein, Korn, & Miller, New York Civil Practice: CPLR
¶ 6514.11 [2008]). Thus, the Supreme Court had no authority to
award costs and disbursements under CPLR 6514(c) (see Ryan v La Rosa, 22
Misc 2d 125), and the plaintiffs never requested costs pursuant to 22
NYCRR 130-1.1. Accordingly, the Supreme Court should have denied that
branch of the plaintiffs' motion.
[*3]

In order to determine the
amount of costs and disbursements to which the plaintiffs were
purportedly entitled, the Supreme Court appointed a referee and
directed the defendant to pay the referee's fee. Despite our conclusion
that the hearing should not have been held in the first instance, it
has already taken place. Accordingly, we direct the plaintiffs to pay
one half of the referee's fee and the defendant to pay one half of the
referee's fee.

CPLR § 5701 Appeals to appellate division from supreme and county courts

(a) Appeals as of right
2. from an order not specified in subdivision (b), where the motion it decided was made upon notice and it:

(v) affects a substantial right

(c) Appeals by permission

Robertson v United Equities, Inc., 2009 NY Slip Op 03149 (App. Div., 2nd, 2009)

The appeal from so much of the amended order as directed a hearing
to aid in the disposition of the motion of the defendant United
Equities, Inc., which was for an award of an attorney's fee and to
impose a sanction against the plaintiffs and/or their attorney,
pursuant to 22 NYCRR 130-1.1, is not appealable as of right, as it did
not determine that motion and did not affect a substantial right (see CPLR 5701[a][2][v], [c]; Youngquist v Youngquist, 44 AD3d 1034, 1035), and leave to appeal [*2]has not been granted from that portion of the amended order.
Furthermore, the appeal from so much of the amended order as,
sua sponte, directed dismissal of the complaint insofar as asserted
against the defendant United Equities, Inc., is not appealable as of
right, as it did not decide a motion made upon notice (see CPLR 5701[a][2], [c]; Consolidated Resources, LLC v 21-220-230 Owner's Corp., 59 AD3d 579), and leave to appeal has not been granted from that portion of the amended order.

The bold is mine.

CPLR § 5701(a)(2) & (c)

CPLR § 5701 Appeals to appellate division from supreme and county courts

Barry v Barry, 2009 NY Slip Op 02310 (App. Div., 2nd, 2009)

The modification of the defendant's visitation rights did not decide a
motion made on notice, and no appeal lies as of right from such an
order (see CPLR 5701[a][2]). Nor has leave to appeal been granted (see CPLR
5701[c]). To obtain appellate review, the defendant must move to vacate
or modify the order, and appeal, if necessary, from the resulting order
(see Sholes v Meagher, 100 NY2d 333; Egwuonwu v Simpson, 4 AD3d 500; Koczen v VMR Corp., 300 AD2d 285).