Georgievski v. Robins

Georgievski v Robins (2025 NY Slip Op 00912) Georgievski v Robins 2025 NY Slip Op 00912 Decided on February 18, 2025 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: February 18, 2025 Before: Manzanet-Daniels, J.P., Kennedy, Shulman, Higgitt, Michael, JJ. Index No. 800001/16 Appeal No. 3727 Case No. 2024-06045 [*1]Gorgi Georgievski, Plaintiff-Appellant, v Howard F. Robins, Defendants-Respondents. Gorgi Georgievski, appellant pro se. Lewis Johs Avallone Aviles LLP, New York (Theresa Scotto-Lavino of counsel), for respondent. Appeal from order, Supreme Court, New York County (John J. Kelley, J.), entered September 10, 2024, which sua sponte dismissed plaintiff's complaint for failure to comply with a prior order, unanimously dismissed, without costs, as taken from a nonappealable order. The court sua sponte dismissed plaintiff's complaint based upon his failure to comply with the terms of its prior order to obtain an expert witness and serve a legally sufficient CPLR 3101(d) notice. There is no right of appeal from an order entered sua sponte (see Sholes v Meagher, 100 NY2d 333, 335 [2003]; Matter of Jones Law Firm, P.C. v J. Synergy Green, Inc., 231 AD3d 539, 540 [1st Dept 2024]). The proper procedure is for plaintiff to move to vacate the sua sponte order and then, if necessary, "appeal from the denial of that motion so that a suitable record may be made and counsel afforded the opportunity to be heard on the issues" (Board of Educ. of the City Sch. Dist. of the City of N.Y. v Grullon, 117 AD3d 572 [1st Dept 2014] [internal citations omitted]; see e.g. Armstrong v B.R. Fries & Assoc., Inc., 95 AD3d 697, 697 [1st Dept 2012]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: February 18, 2025