Green v Crosby

[*1] Green v Crosby 2006 NY Slip Op 50353(U) [11 Misc 3d 132(A)] Decided on March 9, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 9, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2005-559 K C.

Colleen Green, Respondent,

against

Janice Crosby, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered April 11, 2005. The order, insofar as appealed from as limited by the brief, provided that "No further O.S.C. [order to show cause] to be given."

Appeal dismissed.

Defendant limits her appeal from so much of the order granting a stay of execution of the warrant of eviction in an ejectment action, as recited that "[n]o further [order to show cause] to be given." We conclude that said branch of the order is not appealable as of right. It decided no demand for relief made on notice to defendant (CPLR 5701 [a] [2]) and was therefore sua sponte (Sholes v Meagher, 100 NY2d 333, 335 [2003]). Defendant's remedy was a motion to vacate that portion of the order, thereby ensuring that the appeal is "made on a suitable record" and "an opportunity to be heard" (Davidson v Regan Fund Mgt. Ltd., 15 AD3d 172, 172-173 [2005]; see CPLR 5701 [a] [3]; Serradilla v Lords Corp., 12 AD3d 279, 280 [2004] [citing the absence "of any subsequent motion to vacate that would have properly placed the issues appellant now seeks to raise before th(e) Court"]). While in the interest of judicial economy we may deem the notice of appeal as a motion for leave to appeal and grant such leave (Serradilla v Lords Corp., 12 AD3d at 280; see CPLR 5701 [c]), we decline to do so upon the facts herein (e.g. Hladun-Goldmann v Rentsch Assoc., 8 AD3d 73 [2004]).

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: March 9, 2006