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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.

 

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