CPLR 5701(a)(2) authorizes an appeal as of right from an order “where the motion it decided was made upon notice.” “Ex parte applications are generally disfavored by the courts, unless expressly authorized by statute because of the attendant due process implications caused by proceeding without notice.” Essex v. Newman, 220 A.D.2d 639 (2d Dep’t 1995). Similarly, “sua sponte orders are deemed a deprivation of due process where a party had no notice, and thus no opportunity to be heard, that such an order was under consideration.” Eggleston v. Gloria N., 55 A.D.3d 309 (1st Dep’t 2008); Chase Home Fin. v. Kornitzer, 139 A.D.3d 784 (2d Dep’t 2016).
CPLR 5701(a)(3), not the most fluidly comprehensible legislative articulation, spells out the method by which to convert a nonappealable ex parte order into an order that is appealable as of right:
from an order, where the motion it decided was made upon notice, refusing to vacate or modify a prior order, if the prior order would have been appealable as of right under paragraph two had it decided a motion made upon notice.
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