Departmental Schism Re Post-Judgment Reviewability of Sua Sponte Orders Continues
"The statute and 'Sholes' impose an onerous time-consuming process upon the aggrieved party who may be in need of immediate relief from a sua sponte order," writes Elliott Scheinberg.
August 06, 2024 at 02:00 PM
8 minute read
Civil AppealsCPLR 5701(a)(2) authorizes an appeal as of right from an order "where the motion it decided was made upon notice." Sua sponte orders, however, are not appealable as of right. Sholes v. Meagher, 100 N.Y.2d 333 [2003]; CPLR 5701(a)(3). An appeal may be sought by permission (CPLR 5701(c)). 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 Dept 2008]; Chase Home Fin. v. Kornitzer, 139 A.D.3d 784 [2d Dept 2016]. Similarly, "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 AD2d 639 [2d Dept 1995]. In Sholes, the Court of Appeals expressed concern that there may be an inadequate record for appellate review.
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