GEORGIEVSKI v. ROBINS (2025)

Appeal from order, Supreme Court, New York County (John J. Kelley, J.), entered September 10, 2024, which sua sponte dismissed plaintiff's complaint for failure to comply with a prior order, unanimously dismissed, without costs, as taken from a nonappealable order.

The court sua sponte dismissed plaintiff's complaint based upon his failure to comply with the terms of its prior order to obtain an expert witness and serve a legally sufficient CPLR 3101(d) notice.  There is no right of appeal from an order entered sua sponte (see Sholes v. Meagher, 100 N.Y.2d 333, 335, 763 N.Y.S.2d 522, 794 N.E.2d 664 [2003];  Matter of Jones Law Firm, P.C. v. J. Synergy Green, Inc., 231 A.D.3d 539, 540, 218 N.Y.S.3d 340 [1st Dept. 2024]).  The proper procedure is for plaintiff to move to vacate the sua sponte order and then, if necessary, “appeal from the denial of that motion so that a suitable record may be made and counsel afforded the opportunity to be heard on the issues” (Board of Educ. of the City Sch. Dist. of the City of N.Y. v. Grullon, 117 A.D.3d 572, 986 N.Y.S.2d 85 [1st Dept. 2014] [internal citations omitted];  see e.g. Armstrong v. B.R. Fries & Assoc., Inc., 95 A.D.3d 697, 697, 945 N.Y.S.2d 74 [1st Dept. 2012]).