Opinion
988 CA 19-02053
11-13-2020
CHRISTOPHER J. JULIANO AND THOMAS R. JULIANO, PLAINTIFFS-RESPONDENTS, v. GENESEE GATEWAY, LLC, DEFENDANT-APPELLANT.
DUKE, HOLZMAN, PHOTIADIS & GRESENS, LLP, BUFFALO (PATRICIA GILLEN OF COUNSEL), FOR DEFENDANT-APPELLANT.
PRESENT:
DUKE, HOLZMAN, PHOTIADIS & GRESENS, LLP, BUFFALO (PATRICIA GILLEN OF COUNSEL), FOR DEFENDANT-APPELLANT.
Appeal from an order of the Supreme Court, Erie County (John F. O'Donnell, J.), entered November 6, 2019. The order, among other things, granted plaintiffs a temporary easement and a temporary restraining order against defendant.
It is hereby ORDERED that said appeal is unanimously dismissed without costs.
Memorandum: Defendant appeals from an ex parte order granting plaintiffs a temporary easement over defendant's property along with a temporary restraining order prohibiting defendant from blocking the back door of plaintiffs' building. We conclude that "[i]nasmuch as no appeal lies as of right 'from an ex parte order, including an order entered sua sponte' . . . , and permission to appeal has not been granted (see CPLR 5701 [c]), the appeal must be dismissed" (Obot v Medaille Coll., 82 AD3d 1629, 1630 [4th Dept 2011], appeal dismissed 17 NY3d 756 [2011], quoting Sholes v Meagher, 100 NY2d 333, 335 [2003]; see CPLR 5701 [a] [2]). We decline to treat the notice of appeal as an application pursuant to CPLR 5704 (a) (cf. Matter of Shaw v Goodman, 291 AD2d 207, 207 [1st Dept 2002]; Matter of Tepper v Lonschein, 253 AD2d 435, 436 [2d Dept 1998]; Anostario v Anostario, 249 AD2d 612, 613 [3d Dept 1998]) inasmuch as Supreme Court has stayed enforcement of the order in question and the issues raised herein do not involve "questions of law, i.e., the interpretation of [a statute] and the propriety of the . . . [c]ourt's issuance of the ex parte order" (Anostario, 249 AD2d at 613).
Entered: November 13, 2020
Mark W. Bennett
Clerk of the Court