You are here: / / IN THIS ARTICLE 78 PROCEEDING, NO APPEAL LIES FROM A JUDGE’S DECLINING...
, ,

IN THIS ARTICLE 78 PROCEEDING, NO APPEAL LIES FROM A JUDGE’S DECLINING TO SIGN AN ORDER TO SHOW CAUSE; THE ONLY REMEDY IS A MOTION TO VACATE THE FINAL JUDGMENT (FIRST DEPT).

The First Department, in this Article 78 proceeding, noted that no appeal lies from a judge’s declining to sign an order to show cause. The only remedy is a motion to vacate the final judgment:

No appeal lies from an order declining to sign an order to show cause, since it is an ex parte order that does not decide a motion made on notice (see CPLR 5701[a][2] … ).

No party requests that we consider relief under CPLR 5704(a). In any event, we note that Supreme Court providently exercised its discretion in declining to sign plaintiffs’ proposed order to show cause … . Plaintiffs sought to bring on a motion to renew an order that denied the petition and dismissed the proceeding, thus terminating the special proceeding. Renewal is not available under such circumstances … . Instead, an application to vacate a final judgment must be brought pursuant to CPLR 5015 … . This principle applies specifically in the context of a challenge to “a judgment dismissing a CPLR article 78 petition” … . Matter of Alliance to End Chickens as Kaporos v New York City Police Dept., 2022 NY Slip Op 00041, First Dept 1-6-22

 

You might also like
DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INFORM DEFENDANT THE AGGRAVATED FELONY TO WHICH DEFENDANT PLED GUILTY SUBJECTED HIM TO MANDATORY DEPORTATION, APPEAL HELD IN ABEYANCE TO ALLOW DEFENDANT TO MOVE TO VACATE HIS PLEA (FIRST DEPT).
Writing Which Omitted Certain Crucial Terms Was an “Agreement to Agree,” Not an Enforceable Real Estate Sales Contract
QUESTION OF FACT WHETHER PLAINTIFF’S SLIP AND FALL OCCURRED ON DEBRIS IN A WALKWAY WITHIN THE MEANING OF THE NYCRR IN THIS LABOR LAW 241(6) ACTION, HOWEVER, BECAUSE THE FALL OCCURRED OUTSIDE THE ENTRANCE TO A SHANTY, THE NYCRR PROVISION WHICH PERTAINS TO PASSAGEWAYS WAS NOT APPLICABLE (FIRST DEPT).
THE DOCTRINE OF ‘TAX ESTOPPEL’ PROHIBITED DEFENDANT FROM TAKING A POSITION ON OWNERSHIP OF A CORPORATION WHICH IS CONTRARY TO STATEMENTS MADE IN CORPORATE TAX RETURNS (FIRST DEPT).
MISNOMER DID NOT PREJUDICE THE CITY; CITY’S MOTION TO DISMISS SHOULD HAVE BEEN DENIED AND PLAINTIFF’S CROSS MOTION TO AMEND THE SUMMONS AND COMPLAINT SHOULD HAVE BEEN GRANTED (FIRST DEPT).
PLAINTIFF FELL OFF THE EDGE OF A BATHTUB WHEN HE WAS ATTEMPTING TO INSTALL A SHOWER-CURTAIN ROD; THE EDGE OF THE TUB WAS THE EQUIVALENT OF A SCAFFOLD AND PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION; TWO-JUSTICE DISSENT (FIRST DEPT). ​
Presumption Tenants-In-Common Share Equally Can Be Rebutted
Governmental Immunity Applied to Preclude Recovery by Bicyclist​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE BANK WHICH COMMENCED THE 2006 FORECLOSURE HAD ALREADY ASSIGNED THE NOTE... BECAUSE PLAINTIFF ALLEGED THE ORAL CONTRACT WAS ENFORCEABLE EVEN IF THE TRIGGERING...