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.
DUKE, HOLZMAN, PHOTIADIS & GRESENS, LLP, BUFFALO (PATRICIA GILLEN OF COUNSEL), FOR DEFENDANT-APPELLANT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
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 A.D.3d 1629, 1630, 919 N.Y.S.2d 410 [4th Dept. 2011], appeal dismissed 17 N.Y.3d 756, 929 N.Y.S.2d 70, 952 N.E.2d 1063 [2011], quoting Sholes v. Meagher , 100 N.Y.2d 333, 335, 763 N.Y.S.2d 522, 794 N.E.2d 664 [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 A.D.2d 207, 207, 736 N.Y.S.2d 870 [1st Dept. 2002] ; Matter of Tepper v. Lonschein , 253 A.D.2d 435, 436, 675 N.Y.S.2d 898 [2d Dept. 1998] ; Anostario v. Anostario , 249 A.D.2d 612, 613, 670 N.Y.S.2d 629 [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 A.D.2d at 613, 670 N.Y.S.2d 629 ).