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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

 

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IN A SLIP AND FALL CASE, WHETHER THE CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE AND THE PROPERTY OWNER’S DUTY TO WARN, BUT DOES NOT SPEAK TO PROXIMATE CAUSE OR NEGLIGENCE; HERE THE IRREGULARLY-SHAPED LANDING AND ABSENCE OF A HANDRAIL VIOLATED THE CITY BUILDING CODE; DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
Recorded Conversation In Which Defendant Did Not Respond to Statements by Victim that He Had Broken Her Ribs Was Admissible
DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, HE ADEQUATELY ALLEGED DEFENSE COUNSEL GAVE HIM WRONG INFORMATION ABOUT THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA VERSUS A CONVICTION AFTER TRIAL.
THE EVIDENCE DID NOT SUPPORT A FINDING OF NEGLECT FOR FAILURE TO PROVIDE ADEQUATE SHELTER (FIRST DEPT).

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