One of the practical problems which trial counsel confront is a sua sponte order which has an adverse effect on a party.
The situation can arise, for example, at a pretrial calendar conference when a judge sanctions a party for failure to comply with discovery deadlines established by court order or by stipulation of the parties. The sanction may consist of the imposition of attorneys' costs on the offending side, or even, in an extreme situation, the dismissal of a claim.
It is well-established under New York law that there is no right to appeal a sua sponte order. The rule follows from CPLR § 5701(a)(2) which indicates that a party has a right to appeal from an order "where the motion it decided was made upon notice." Because a sua sponte order is not the result of a motion made on notice, the courts conclude that there is no right to appeal the order.
The solution for the aggrieved party? Make a motion on notice to vacate the sua sponte order, and if the motion is denied, appeal the order denying the motion to vacate. See, Sholes v. Meagher, 100 N.Y.2d 333 (2003); CPLR § 5701(a)(3).