Milton v. 305/72 Owners Corp.

19 A.D.3d 133, 796 N.Y.S.2d 344, 2005 N.Y. App. Div. LEXIS 5919

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 2, 2005
• Status: Published

Opinion

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered January 27, 2004, which dismissed plaintiffs verified complaint, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered November 26, 2003, which denied plaintiffs motion for a protective order regarding medical and psychiatric records sought by defendant, unanimously dismissed as academic, without costs.

The dismissal order is not appealable as of right because it did not decide a motion made on notice, and the record is devoid of any subsequent motion to vacate that would have properly placed the issue before this Court (Serradilla v Lords Corp., 12 AD3d 279 [2004]). However, in the interest of judicial economy, we, sua sponte, deem the notice of appeal to be a motion for leave to appeal, and grant such leave (id.; CPLR 5701 [c]).

Plaintiff repeatedly failed to comply with court orders to supply medical authorizations, and failed to appeal from any of those orders until after the complaint was dismissed. Plaintiff also failed to offer a reasonable excuse for disobeying the court’s orders. Contrary to plaintiffs contention, he did not have to disobey the court’s directive to produce medical authorizations to be able to appeal the IAS court’s earlier rulings. He could have appealed the orders and sought a stay pending determination of the appeal. Absent a reasonable excuse for plaintiffs disobedience, dismissal of the action was a proper exercise of discretion (Sinn v City of New York, 304 AD2d 504 [2003]). Concur— Saxe, J.P, Sullivan, Nardelli and Williams, JJ.