Opinion
9036-9037N Index 100425/18
04-18-2019
Anna BETTS, Plaintiff–Appellant, v. Savas TSITIRIDIS, et al., Defendants–Respondents, 1617A, LLC, Defendant.
Finkelstein Law Group, PLLC, Syosset (Stuart Finkelstein of counsel), for appellant. Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf LLP, Brooklyn (Thomas Torto of counsel), for respondents.
Finkelstein Law Group, PLLC, Syosset (Stuart Finkelstein of counsel), for appellant.
Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf LLP, Brooklyn (Thomas Torto of counsel), for respondents.
Richter, J.P., Manzanet–Daniels, Kahn, Gesmer, Oing, JJ.
Order, Supreme Court, New York County (Adam Silvera, J.), entered August 20, 2018, which sua sponte vacated an order, same court and Justice, entered July 11, 2018, granting plaintiff's motion for a default judgment as against defendants Savas Tsitiridis, Central Hacking Corp., Ionut Patroi, and United Taxi Management Group, Inc., unanimously reversed, on the law, without costs, and the order entered July 11, 2018 reinstated.
While an order entered sua sponte is not appealable as of right ( Sholes v. Meagher, 100 N.Y.2d 333, 335, 763 N.Y.S.2d 522, 794 N.E.2d 664 [2003] ), given the lack of evidence of the timeliness of the service of the answer and given the motion court's failure to identify a legal basis for vacating the prior order, we deem the notice of appeal a motion for leave to appeal, and grant leave (see e.g. Ray v. Chen, 148 A.D.3d 568, 50 N.Y.S.3d 62 [1st Dept. 2017] ).
The court exceeded its authority in sua sponte vacating the prior order granting plaintiff's motion for a default judgment (see Kiker v. Nassau County, 85 N.Y.2d 879, 881, 626 N.Y.S.2d 55, 649 N.E.2d 1199 [1995] ; Howell v. City of New York, 165 A.D.3d 567, 86 N.Y.S.3d 57 [1st Dept. 2018] ). In the absence of a motion or other request for relief from the order, the court's discretion to correct the order was limited to curing any mistake, defect or irregularity "not affecting a substantial right of a party" ( CPLR 5019[a] ).