Category: CPLR

CPLR R. 3212(f) facts within the exclusive control of the moving party

CPLR R. 3212 Motion for summary judgment

(f) Facts unavailable to opposing party

Desena v City of New York, 2009 NY Slip Op 06160 (App. Div., 2nd, 2009)

Keyspan established its prima facia entitlement to judgment as a
matter of law by submitting evidence that it did not create the alleged
roadway defect that caused the plaintiff's injuries (see Alvarez v Prospect Hosp., 68
NY2d 320, 324). The plaintiff, however, established that facts
essential to resolution of this case exist, but are within the
exclusive control of Keyspan. Pursuant to CPLR 3212(f), a trial court
has the discretion to deny a motion for summary judgment or order a
continuance to allow disclosure if "facts essential to justify
opposition may exist, but cannot then be stated." There must be a
likelihood of discovery leading to such evidence (see Mazzaferro v Barterama Corp., 218
AD2d 643), and the party opposing the motion for summary judgment must
allege the existence of proof in admissible form which presents a
triable issue of fact or an acceptable excuse for the absence of
first-hand knowledge (see Chemical Bank v PIC Motors Corp., 58 NY2d 1023).

In opposition to the motion for summary judgment, the plaintiff submitted the [*2]affirmation
of his attorney alleging that the Keyspan foreman, who was present at
the Keyspan work site on the date work was performed and completed and
who, to date, has not yet been deposed, will provide facts that will
raise a triable issue of fact and are essential to the plaintiff's
ability to defend against this motion for summary judgment. To the
extent that Keyspan's motion for summary judgment is based entirely
upon evidence which refers to work which was planned or permitted to be
performed at the work site, and not upon evidence showing what work was
actually performed, the deposition of the Keyspan foreman, who was
actually present, is necessary to resolve this factual dispute.

The bold is mine.

CPLR R. 5526 Record insufficient — Appeal dismissed

CPLR R. 5526 Content and form of record on appeal

Keita v United Parcel Serv., 2009 NY Slip Op 06165 (App. Div., 2nd, 2009)

In two decisions and orders on motion, dated December 24, 2008, and
March 12, 2009, respectively, this Court directed the plaintiffs to
serve and file a supplemental record containing, inter alia, the
answers to the complaint and "the notice of motion and affidavits
annexed thereto, answering affidavits, if any, and reply affidavits, if
any, submitted in connection with the motion that resulted in the order
being appealed." The plaintiffs have failed to do so.

It is the appellants' obligation to assemble a proper record on appeal (see Salem v Mott, 43 AD3d 397; Cohen v Wallace & Minchenberg, 39 AD3d 689, 689). In this regard, "[t]he record must contain all of the relevant papers that were before the Supreme Court" (Cohen v Wallace & Minchenberg, 39 AD3d 689; see CPLR 5526; Matter of Allstate Ins. Co. v Vargas, 288
AD2d 309, 310). Where, as here, meaningful appellate review of the
Supreme Court's determination is made "virtually impossible" because of
the incomplete nature of the record submitted, dismissal of the appeal
is the appropriate disposition (Salem v Mott, 43 AD3d 397, 397).

The bold is mine,

CPLR § 7503 Arbs

CPLR § 7503 Application to compel or stay arbitration; stay of action; notice of intention to arbitrate

Shah v Monpat Constr., Inc., 2009 NY Slip Op 06132 (App. Div., 2nd, 2009)

Arbitration is favored in New York State as a means of resolving
disputes, and courts should interfere as little as possible with
agreements to arbitrate (see Matter of Smith Barney Shearson v Sacharow, 91 NY2d 39, 49; Matter of Miller, 40 AD3d 861,
861-862). There is a substantial countervailing consideration as well:
"by agreeing to arbitrate a party waives in large part many of his
normal rights under the procedural and substantive law of the State" (Matter of Marlene Indus. Corp. [Carnac Textiles], 45 NY2d 327, 333 334; see Matter of Miller, 40
AD3d at 862). For that reason, "a party will not be compelled to
arbitrate and, thereby, to surrender the right to resort to the courts,
absent evidence which affirmatively establishes that the parties
expressly agreed to arbitrate their disputes'" (Matter of Waldron [Goddess], 61 NY2d 181, 183, quoting Schubtex, Inc. v Allen Snyder, Inc., 49 NY2d 1, 6; see TNS Holdings v MKI Sec. Corp. 92 NY2d 335, 339; Matter of Miller, 40 AD3d at 862). "The agreement must be clear, explicit and unequivocal" (Matter of Waldron [Goddess], 61 NY2d at 183; see God's Battalion of Prayer Pentecostal Church, Inc. v Miele Assoc., LLP, 6 NY3d 371, 374; Matter of Miller, 40
AD3d at 862). Once the court has determined the threshold issues of the
existence of a valid agreement to arbitrate, that the party seeking
arbitration has complied with the agreement, and that the claim sought
to be arbitrated would [*3]not be time-barred were it asserted in state court (see CPLR 7502[b]; Matter of Smith Barney, Harris Upham & Co. v Luckie, 85 NY2d 192, 201-202), the remaining issues are for the arbitrator.

Here, the written contract was clear, explicit, and unequivocal
and established a valid agreement to arbitrate. The agreement expressly
adopted Document A201-1997 by reference, in effect, listed it as one of
the "Contract Documents" in Article 1, enumerated it as one of the
"Contract Documents" in Article 8, and referred to it by document
number throughout. Consequently, the arbitration provisions included in
Document A201-1997 are part of the written contract (see Matter of Level Export Corp. [Wolz, Aiken & Co.],
305 NY 82, 87). Shah's contention that he never received Document
A201-1997 is unavailing, and his ignorance of its provisions must be
attributed to " negligence or inexcusable trustfulness'" (Matter of Level Export Corp. [Wolz, Aiken & Co.], 305 NY 82, 87, quoting Metzger v Aetna Ins. Co., 227 NY 411, 416]).

The plaintiffs did not contend in the Supreme Court, either in
support of their motion to stay arbitration or in opposition to the
defendants' motion to compel arbitration, that Monpat had not complied
with conditions precedent to arbitration. Consequently, that issue is
not properly before us (see Matter of New York Cent. Mut. Fire Ins. Co. v Daley, 273 AD2d 315; Matter of County of Suffolk v Faculty Assn. of Suffolk County Community Coll., 247
AD2d 472). Indeed, had the issue been raised in the Supreme Court,
Monpat may have been able to present evidence that it had in fact
complied with conditions precedent (see Matter of New York Cent. Mut. Fire Ins. Co. v Daley, 273 AD2d 315; cf. Misicki v Caradonna, 12 NY3d 511; Weiner v MKVII-Westchester, 292 AD2d 597, 598).

In general, where there is a broad arbitration clause, any issue
with respect to changes in the substantive provisions of a contract or
its termination are to be resolved by the arbitrator, unless the
modification or termination relates to the arbitration clause itself (see Matter of Cassone, 63 NY2d 756, 759; Matter of All Metro Health Care Servs. Inc. v Edwards, 57 AD3d 892; Matter of Meetze [La Belle], 295 AD2d 991, 992; Matter of Cantor Fitzgerald, L.P. [Ginsberg],
228 AD2d 591). Here, the plaintiffs' contention that the written
contract was abandoned was not directly related to the arbitration
provisions, so the issue of abandonment should be left for the
arbitrator. The issue of the statute of limitations is so intertwined
with the parties' substantive contentions and the contentions regarding
abandonment that the issue of the statute of limitations should be left
to the arbitrator (see Matter of Corbo v Les Chateau Assoc., 127
AD2d 657, 658). As well, issues regarding proper service of the demand
for arbitration should be determined by the arbitrator (see Matter of Rockland County v Primiano, 51 NY2d 1, 8; Cooper v Bruckner, 21 AD3d 758, 759; J. Castronovo, Inc. v Hillside Dev. Corp., 140 AD2d 585).

Finally, the written contract was between Shah and Monpat, and
there is no clear evidence that the plaintiffs ever agreed to arbitrate
any disputes with Patel and RB. Consequently, the Supreme Court should
not have compelled the plaintiffs to arbitrate their claims against
those defendants (see Estate of Castellone v JP Morgan Chase Bank, N.A., 60 AD3d 621, 623).

The bold is mine.

Standing; CPLR R. 3211

CPLR R. 3211 Motion to dismiss

RLI Ins. Co. v Steely, 2009 NY Slip Op 06130 (App. Div., 2nd, 2009)

The defendant William Steely sought insurance coverage for a boating
accident pursuant to, inter alia, a homeowner's policy issued to him by
the defendant New York Central Mutual Fire Insurance Company
(hereinafter NY Mutual), and an umbrella policy issued to him by the
plaintiff, RLI Insurance Company. NY Mutual allegedly denied coverage
on the ground that, inasmuch as Steely owned the boat on the date of
the accident, there was no coverage because of a specific exclusion
under its policy. The plaintiff commenced this action for a judgment
declaring, inter alia, that NY Mutual was obligated to provide coverage
to Steely because he did not, in fact, [*2]own
the boat on the date of the accident, and that any such coverage
provided by the plaintiff's policy was excess to any coverage provided
by NY Mutual's policy.

NY Mutual moved, inter alia, pursuant to CPLR 3211 to dismiss
the complaint for lack of standing insofar as asserted against it. NY
Mutual argued, among other things, that the plaintiff lacked standing
to challenge its disclaimer of coverage to its insured. The Supreme
Court, inter alia, granted that branch of NY Mutual's motion which was
to dismiss the complaint insofar as asserted against it. We reverse the
order insofar as appealed from.

We find that the plaintiff has standing to challenge NY
Mutual's disclaimer of coverage to its insured. "A plaintiff need not
be privy to an insurance contract to commence a declaratory judgment
action to determine the rights and obligations of the respective
parties, so long as the plaintiff stands to benefit from the policy" (Mortillaro v Public Serv. Mut. Ins. Co., 285 AD2d 586, 587). Here, the plaintiff clearly stands to benefit from NY Mutual's policy.

The bold is mine.

Reasonbable Excuse and (Potentially?) Meritorious Defense: CPLR R. 5015

CPLR R. 5015 Relief from judgment or order

Kramer v Oil Servs., Inc., 2009 NY Slip Op 06121 (App. Div., 2nd, 2009)

A defendant seeking to vacate its default in appearing or answering the
complaint must provide a reasonable excuse for the default and
demonstrate the existence of a meritorious defense to the action (see CPLR 5015[a][1]; Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d 671, 672; Krieger v Cohan, 18 AD3d 823; Kaplinsky v Mazor,
307 AD2d 916). The only excuse proffered by the appellant for the
default in serving a timely answer was the more than one-year delay
caused by its insurance carrier in providing a defense which, under the
circumstances, was insufficient (see Toland v Young, 60 AD3d 754; Martinez v D'Alessandro Custom Bldrs. & Demolition, Inc., 52 AD3d 786; Canty v Gregory, 37 AD3d 508; Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d at 672; Krieger v Cohan, 18 AD3d 823; Hegarty v Ballee, 18 AD3d [*2]706). Accordingly, the Supreme Court providently exercised its discretion in denying the appellant's motion.

Recently I received a comment questioning why some decision require defendant to show a "potentially" meritorious defense and others require them to show meritorious defense.  I suggested that "potentially meritorious" might be a middle ground between an "interests of justice" vacatur and and a normal meritorious defense vacatur.  I know, that sentence is anything but clear.  But I think you get the idea.

So, yeah, I'm still looking into it.  I meant to do it over the weekend, but life got in the way.  And I'm lazy.  Eventually I will get to it, I swear.

The bold is mine.

Conclusory Expert Affidavit Just Won’t Do it

CPLR R. 3212 Motion for summary judgment

Ghany v Hossain, 2009 NY Slip Op 06116 (App. Div., 2nd, 2009)

On a motion for summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Zuckerman v City of New York,
49 NY2d 557). Here, the defendants satisfied their burden and, in
opposition, the plaintiff failed to raise a triable issue of fact (see Grob v Kings Realty Assoc., 4 AD3d 394,
395). In opposition to the motion, the plaintiff submitted, inter alia,
the affidavit of an expert witness, who opined, in pertinent part, that
the condition of the subject stairs and the upper portion of the
handrail were substantial factors in causing the decedent's injuries.
Even if the stairway and handrail were defective, as the expert opined,
the Supreme Court properly determined that his conclusion linking the
alleged defects to the decedent's fall was purely speculative (see Grob v Kings Realty Assoc., 4 AD3d at 395). Accordingly, the Supreme Court properly awarded the [*2]defendants summary judgment dismissing the complaint.

Ismail v Tejeda, 2009 NY Slip Op 06118 (App. Div., 2nd, 2009).

The defendants did not meet their prima facie burden of establishing
that the plaintiff did not sustain a serious injury within the meaning
of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352; Gaddy v Eyler,
79 NY2d 955). The plaintiff clearly alleged in his bill of particulars
that he had sustained, inter alia, a medically-determined injury or
impairment of a nonpermanent nature which prevented him from performing
substantially all of the material acts constituting his usual and
customary activities for not less than 90 days during the 180 days
immediately following the accident. However, the affirmed report of the
defendants' examining physician did not specifically relate any of his
findings to the 90/180 day category of serious injury for the relevant
time period following the accident, and the defendants did not submit
any other evidence to refute the plaintiff's claim (see Neuburger v [*2]Sidoruk, 60 AD3d 650; Miller v Bah, 58 AD3d 815; Scinto v Hoyte, 57 AD3d 646).
Since the defendants failed to meet their prima facie burden with
respect to the 90/180 day category of a serious injury, it is
unnecessary to examine the sufficiency of the plaintiff's opposition
papers in this regard (see Neuburger v Sidoruk, 60 AD3d at 652; Miller v Bah, 58 AD3d at 816; Scinto v Hoyte, 57 AD3d at 647).

Far too often, counsel and judges alike ignore this important concept: An expert's affidavit (or affirmation), even if unrebutted, if conclusory or insufficient, will not carry the party offering the affidavit.

The bold is mine.

Republication Reaches New Audience, SOL Begins to Run from Republication

I don't know why I do the weird capitalization thing in my post titles.  Eventually I'll stop or find some other, just as stupid, format for them.

CPLR R. 3211(a)(5) Motion to dismiss for SOL (or other things, but SOL in this case)

CPLR §
215 Actions to be commenced within one year: against sheriff, coroner
or constable; for escape of prisoner; for assault, battery, false
imprisonment, malicious prosecution, libel or slander; for violation of
right of privacy; for penalty given to informer; on arbitration award

Ross v Kohl's Dept. Stores, Inc., 2009 NY Slip Op 06131 (App. Div., 2nd, 2009)

The appeal from the intermediate order must be dismissed because the
right of direct appeal therefrom terminated with the entry of final
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]).

The Supreme Court erred in granting the defendant's motion to dismiss the complaint [*2]pursuant
to CPLR 3211(a)(5) and CPLR 215(3) on the ground that the statute of
limitations had expired. The alleged libelous statement was published
by the defendant in 2000 when it forwarded a report regarding the
plaintiff to USIS, a reporting agency that provides background
information to employers, thereby communicating the information to a
third party (see Gregoire v Putnam's Sons, 298 NY 119). The
report generated by USIS in 2006 and provided to the plaintiff's
employer was a republication, as it was a separate and distinct
publication from the original that was intended to, and actually did,
reach a new audience (see Rinaldi v Viking Penguin, 52 NY2d 422,
433-435). Accordingly, the alleged libelous material was republished
and the statute of limitations began to run anew from the time of the
republication. This action was timely commenced within one year from
the republication and, therefore, the motion should have been denied.

The bold is mine.

Post-NOT Discovery; 22 NYCRR 202.21

22 NYCRR 202.21 Note of issue and certificate of readiness

CPLR § 3126 Penalties for refusal to comply with order or to disclose

CPLR R. 5515 Taking an appeal; notice of appeal

1. An
appeal shall be taken by serving on the adverse party a notice of
appeal and filing it in the office where the judgment or order of the
court of original instance is entered except that where an order
granting permission to appeal is made, the appeal is taken when such
order is entered. A notice shall designate the party taking the appeal,
the judgment or order or specific part of the judgment or order
appealed from and the court to which the appeal is taken.

Racine v Grant, 2009 NY Slip Op 06127 (App. Div., 2nd, 2009)

The Supreme Court improvidently exercised its discretion in granting
the defendants' cross motion pursuant to CPLR 3216 to dismiss the
complaint to the extent of directing the plaintiff to comply with a
demand for discovery which was annexed to the cross motion papers, as
the demand was made more than one year after a note of issue had been
filed in the action. The defendants failed to make the requisite
showing that "unusual or unanticipated circumstances" had arisen after
the filing of the note of issue (22 NYCRR 202.21[d], [e]; see Silverberg v Guzman, 61 AD3d 955; Utica Mut. Ins. Co. v P.M.A. Corp., 34 AD3d 793, 794; Audiovox Corp. v Benyamini, 265 AD2d 135, 138; Marks v Morrison, 275 AD2d 1027), to justify the demanded disclosure at this late stage of the action.

The plaintiff's argument that the Supreme Court should have
granted his motion to strike the defendants' answer is not properly
before us, as the plaintiff's notice of appeal limited the scope of the
appeal to that part of the Supreme Court's order which determined the
defendants' cross [*2]motion (see CPLR 5515[1]; Marciano v Ran Oil Co., E., LLC, 63 AD3d 1118).

The bold is mine.

CPLR § 6514 and Fun With Constructive Trusts

CPLR § 6514 Motion for cancellation of notice of pendency

(b) Discretionary cancellation
The court, upon motion of any person aggrieved and upon such notice as
it may require, may direct any county clerk to cancel a notice of
pendency, if the plaintiff has not commenced or prosecuted the action
in good faith.

CPLR R. 3211(a)(7)  pleading fails to state a cause of action

Maiorino v Galindo, 2009 NY Slip Op 06123 (App. Div., 2nd, 2009)

Inasmuch as the motion was made pursuant to CPLR 3211(a)(7), the
court must accept all facts as alleged in the complaint to be true and
accord the plaintiff the benefit of every possible inference (see Leon v Martinez, 84 NY2d 83, 87; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704; Smith v Meridian Tech., Inc., 52 AD3d 685,
686). In general, it may be appropriate to impose a constructive trust
in situations " [w]hen property has been acquired in such circumstances
that the holder of the legal title may not in good conscience retain
the beneficial interest'" (Sharp v Kosmalski, 40 NY2d 119, 121, quoting Beatty v Guggenheim Exploration Co.,
225 NY 380, 386). The necessary elements for the imposition of a
constructive trust are: (1) a confidential or fiduciary relationship;
(2) a promise; (3) a transfer in reliance on that promise; and (4)
unjust enrichment (see Sharp v Kosmalski, 40 NY2d at 121; Pereira v Glicker, 61 AD3d 948; Nastasi v Nastasi, 26 AD3d 32,
37). Here, the complaint does not adequately plead a cause of action to
impose a constructive trust on the Bethpage property. While there was a
confidential relationship between the plaintiff and Galindo as 50%
shareholders in Demo, and Galindo and Madia may have been unjustly
enriched by the alleged diversion of Demo's assets, there was no
promise to either the plaintiff or Demo with respect to the Bethpage
property and no transfer of that property in reliance on any promise.
Indeed, there is no allegation that either the plaintiff or Demo had
any preexisting interest or expectation of an interest in the Bethpage
property. The complaint contains the plaintiff's acknowledgment that
Madia borrowed the money using his own credit to pay for the purchase
of the property, and it is not alleged that any assets of Demo or
personal funds of the plaintiff were used in the purchase of the
property (see Gargano v V.C. & J. Constr. Corp., 148 AD2d 417, 418—419).

Inasmuch as the cause of action seeking to impose a constructive
trust on the Bethpage property was the only cause of action in the
complaint that would affect the title to, or the possession, use or
enjoyment of that property, that branch of the defendants' motion which
was to cancel the notice of pendency should have been granted (see CPLR 6514[b]; Shkolnik v Krutoy, 32 AD3d 536, 537; Distinctive Custom Homes Bldg. Corp. v Esteves, 12 AD3d 559).

The bold is 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.