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ORDER WHICH IS NOT ISSUED PURSUANT TO A MOTION ON NOTICE IS NOT APPEALABLE, A MOTION TO VACATE IS THE PROPER PROCEDURE.

 

The Third Department, reversing Supreme Court, noted that an order which is not issued pursuant to a motion on notice is not appealable. The proper procedure is to move to vacate the order and, if the motion is denied, appeal the denial:

… [P]laintiff followed the appropriate procedure in moving to vacate the … order. Contrary to Supreme Court’s determination, plaintiff could not have challenged the order by taking a direct appeal. As the order was made in response to plaintiff’s letter and did not decide a motion made upon notice, it was not appealable as of right (see CPLR 5701 [a] [2]…). Such an order is properly challenged by moving on notice for vacatur, as plaintiff did here, and then by taking an appeal as of right if the requested relief is denied (see CPLR 5701 [a] [3]…). Thus, the court should have addressed the merits of plaintiff’s motion to vacate the … order, and the application should not have been denied based upon the standards applicable to motions pursuant to CPLR 5015 and 2221. Novastar Mtge., Inc. v Melius, 2016 NY Slip Op 08928, 3rd Dept 12-29-16

 

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