Person v Einhorn

Person v Einhorn 2007 NY Slip Op 07380 [44 AD3d 363] October 4, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 12, 2007

Carl E. Person et al., Appellants,
v
Michael A. Einhorn, Respondent, et al., Defendants.

—[*1] Carl E. Person, New York, appellant pro se and for appellants.

Michael A. Einhorn, respondent pro se.

Appeal from order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered March 2, 2006, which sua sponte dismissed the complaint upon defendant Michael Einhorn's motion, pursuant to CPLR 3211 (a) (2), to dismiss the second cause of action as to plaintiff Carl Person only and to stay the action pending arbitration, unanimously dismissed, without costs.

There is no right of appeal from an order entered sua sponte (Sholes v Meagher, 100 NY2d 333 [2003]). The proper procedure should have been for the plaintiff to move to vacate the order and appealed as of right if that motion was denied (CPLR 5701 [a] [3]). Given questions surrounding the status of the arbitration hearing, this procedure ensures that the appeal will be made on a suitable record after counsel have had an opportunity to be heard (Davidson v Regan Fund Mgt. Ltd., 15 AD3d 172 [2005]). Concur—Mazzarelli, J.P., Sullivan, Sweeny, Malone and Kavanagh, JJ.