You are here: / / THE ORDER DENYING A MOTION TO VACATE OR MODIFY A PRIOR ORDER DID NOT MEET...
,

THE ORDER DENYING A MOTION TO VACATE OR MODIFY A PRIOR ORDER DID NOT MEET THE CRITERIA FOR AN ORDER “APPEALABLE AS OF RIGHT” AND THEREFORE WAS NOT CONSIDERED BY THE APPELLATE DIVISION; THE CRITERIA FOR AN “ORDER APPEALABLE AS OF RIGHT” WERE EXPLAINED (FIRST DEPT)

The First Department noted that the order refusing to vacate or modify a prior order was not appealable:

… [T]his Court lacks jurisdiction to consider the portion of defendants’ appeal from the denial of the motion to vacate. Pursuant to CPLR 5701(a)(3), a party may appeal to this Court as of right from an order refusing to vacate or modify a prior order, but only where the prior order “would have been appealable as of right” pursuant to CPLR 5701(a)(2) if it had been the result of a motion on notice. Here, the Extension Denial Order would not have been appealable as of right if it had been the result of a motion made on notice. The Extension Denial Order was not a substantive ruling, rather it denied defendants’ request for an extension of its time to post a bond. The order did not “involve[] some part of the merits” of the case (CPLR 5701[a][2][iv]) or “affect[] a substantial right” (CPLR 5701[a][2][v]) of the parties, or otherwise fit within CPLR 5701(a)(2) such that it would be appealable as of right. Largo 613 Baltic St. Partners LLC v Stern, 2022 NY Slip Op 06168, First Dept 11-3-22

Practice Point: An order denying a motion to vacate or modify a prior order must meet the criteria for “an order appealable as of right” to be considered on appeal. Here the denial of the motion to vacate the prior order was not a substantive ruling (it asked for an exension of time to post a bond) and therefore did not meet the “appealable as of right” criteria.

 

You might also like
THE MOTION COURT APPLIED THE WRONG CRITERIA WHEN RULING ON WHETHER THE DEFENDANT WAS PREJUDICED BY THE ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL; DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON DEFENSE COUNSEL’S ALLEGED FAILURE TO INFORM HIM OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING; ASSESSING DEFENDANT’S CHANCES AT TRIAL IS NOT THE PROPER ANALYSIS (FIRST DEPT).
THEORIES OF LIABILITY NOT FAIRLY IMPLIED FROM THE NOTICE OF CLAIM CAN NOT BE INCLUDED IN SUPPLEMENTAL BILL OF PARTICULARS.
FAILURE TO NAME INDIVIDUAL POLICE OFFICERS, OR JOHN DOE OFFICERS, IN A NOTICE OF CLAIM PRECLUDED SUIT AGAINST THE POLICE OFFICERS SUBSEQUENTLY NAMED IN THE COMPLAINTS.
FALL THOUGH AN UNGUARDED FLOOR OPENING AT A CONSTRUCTION SITE IS COVERED UNDER LABOR LAW 240 (1), THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF WAS ABLE TO TIE OFF HIS HARNESS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
Rights of Adopted Children.
PLAINTIFF, AN EXPERIENCED SKATER, FELL WHEN HIS SKATE HIT A RUT AS HE WAS COACHING HOCKEY; DESPITE THE APPLICABILITY OF THE ASSUMPTION OF RISK DOCTRINE, PLAINTIFF RAISED A QUESTION OF FACT ABOUT “INHERENT COMPULSION;” HE ALLEGED HE WAS DIRECTED TO CONTINUE THE PRACTICE AFTER COMPLAINING OF THE ROUGH ICE (FIRST DEPT).
DEFENDANT DEMONSTRATED IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE WET CONDITION WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL (FIRST DEPT).
PLAINTIFF, WHO HAD PASSED OUT AT A CONCERT, REFUSED ASSISTANCE IN WALKING TO THE BACK OF THE THEATER SO THE EMERGENCY MEDICAL TECHNICIAN COULD CHECK HIS BLOOD PRESSURE AND PULSE; WHEN HE ATTEMPTED TO WALK TO THE BACK OF THE THEATER HE PASSED OUT AGAIN AND FELL, HIS FACE HITTING THE FLOOR; THE DEFENDANTS DID NOT HAVE A DUTY TO ASSIST PLAINTIFF AFTER HE REFUSED THEIR HELP AND THEIR MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

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

PLAINTIFF’S FAILURE TO COMPLY WITH DISCOVERY ORDERS WAS WILLFUL AND CONTUMACIOUS... THE LESSEE OF THE PROPERTY, INFOR, CONTRACTED FOR THE WORK BEING DONE AT THE...