Livathinos v. Vaughan

2017 NY Slip Op 920, 147 A.D.3d 441, 47 N.Y.S.3d 272

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2017
• Docket: 106791/08 -2998 2997 2996
• Status: Published

Opinion

Appeal from judgment, Supreme Court, New York County (Eileen A. Rakower, J.), entered October 26, 2015, awarding defendants costs and disbursements, and dismissing plaintiff’s consolidated amended complaint with prejudice pursuant to an order, same court and Justice, entered September 9, 2015, which, among other things, sua sponte dismissed the consolidated amended complaint, unanimously dismissed, without costs, as taken from a nonappealable paper. Appeal from aforementioned order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment and as taken from a nonappealable order. Appeal from order, same court and Justice, entered September 9, 2015, which granted defendants’ motion to, among other things, release escrow funds to defendant Trinity Stewart Associates, Inc., unanimously dismissed, without costs, as moot.

There is no right to appeal from a judgment that is based upon a sua sponte order; nor is there a right to appeal from the sua sponte order itself (see Hladun-Goldmann v Rentsch Assoc., 8 AD3d 73, 73 [1st Dept 2004]). We decline to treat plaintiffs notice of appeal as an application for leave to appeal (see CPLR 5701 [c]).

Given the foregoing determination, plaintiffs appeal from the order granting defendants’ motion to release the escrow funds is moot.

Concur — Tom, J.P., Renwick, Saxe, Feinman and Gesmer, JJ.