The absence of a statutory right to either a direct appeal from a sua sponte order or any form of immediate review therefrom, akin to CPLR 5704, constitutes a void in appellate jurisprudence that imposes onerous consequences, such as, enforcement, potential contempt, and escalated legal costs pending vacatur of the order, on the party who, perhaps due to no wrongdoing on his part, finds himself on the wrong side of the order. The first opportunity for appellate relief as of right from a sua sponte order becomes available at a distant time only after a full motion with opposing papers to vacate the sua sponte order has been denied [CPLR 5701(a)(3)].1 Sua sponte orders have been reversed as 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.2
CPLR 5701 is the “main statutory source of the jurisdiction of the Appellate Division because it determines what is appealable.”3 CPLR 5701(a)(2) provides that an appeal may be taken as of right “from an order…where the motion was made upon notice.” CPLR 5701(a)(3) addresses sua sponte orders. (Emphasis added.)
‘Sholes v. Meagher’
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