Tuesday, November 22, 2011

Appealing a Sua Sponte Order

    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).
    Happy Thanksgiving.       


  1. This is very timely, thank you for the information. It should be noted that the First Department in New York has distinguished the Sholes case and decided that if a sua sponte order is the result of a clarification request or similar from an existing order then the sua sponte order can be appealed from as a resettlement of the earlier order. Weksler v. Weksler, 81 A.D.3d 401, 918 N.Y.S.2d 11 (1st Dept. 2011). Thanks again for your post.

  2. What happens when the party moves by OSC to vacate and the Court declines to sign? Which part of 5015 even applies? Can you move to reargue instead? What if the Court denies leave?

    It seems that if a court were so inclined, it could put up substantial roadblocks to appellate review.