Cascioli v. Gonzalez

Appellate Division of the Supreme Court of New York

Cascioli v. Gonzalez

173 A.D.2d 1064, 571 N.Y.S.2d 895, 1991 N.Y. App. Div. LEXIS 7574

Appellate Division of the Supreme Court of the State of New York·Decided May 16, 1991·Published·Cited by 1 cases

Opinion

Casey, J. P.

Appeal (transferred to this court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Dickinson, J.), entered November 1, 1989 in Putnam County, which granted plaintiffs leave to file a late note of issue.

Defendant seeks to appeal from an ex parte order, which is not appealable as of right under CPLR 5701 (a) (see, Matter of King v Gregorie, 90 AD2d 922, lv dismissed 58 NY2d 605, 822), and we decline to entertain the appeal as though it were a motion pursuant to CPLR 5704 (a) (see, Matter of McKee v Coughlin, 142 AD2d 798). The matter involves a trial court’s authority to control its own calendar, and the proper procedure is for defendant to move on notice at Supreme Court to vacate the ex parte order (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C5701;5, at 578).

Appeal dismissed, without costs. Casey, J. P., Mikoll, Levine, Mercure and Crew III, JJ., concur.

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Casey, J. P.

Appeal (transferred to this court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Dickinson, J.), entered November 1, 1989 in Putnam County, which granted plaintiffs leave to file a late note of issue.

Defendant seeks to appeal from an ex parte order, which is not appealable as of right under CPLR 5701 (a) (see, Matter of King v Gregorie, 90 AD2d 922, lv dismissed 58 NY2d 605, 822), and we decline to entertain the appeal as though it were a motion pursuant to CPLR 5704 (a) (see, Matter of McKee v Coughlin, 142 AD2d 798). The matter involves a trial court’s authority to control its own calendar, and the proper procedure is for defendant to move on notice at Supreme Court to vacate the ex parte order (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C5701;5, at 578).

Appeal dismissed, without costs. Casey, J. P., Mikoll, Levine, Mercure and Crew III, JJ., concur.

Cascioli v. Gonzalez, 173 A.D.2d 1064, 571 N.Y.S.2d 895, 1991 N.Y. App. Div. LEXIS 7574 (N.Y. Ct. App. 1991).

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