Whether nonparty appellants, Furey & Furey, P.C., have a right to appeal a trial court's sua sponte order, with no notice of motion.

No. Appellants do not have the right to appeal the order because it did not decide a motion made on notice, as required by CPLR § 5701 (a)(2).

During a personal injury jury trial, the trial court cited Appellant-attorney for making facial expressions that had "prejudicial effects" on the jury, and declared a mistrial. Appellants sought to appeal the order. The Appellate Division dismissed the appeal, concluding that the "order was not appealable as of right because it did not decide a motion made on notice (CPLR 5701 [a][2])." The Court of Appeals affirmed, holding that while the order itself was not appealable, Appellants could have motioned to vacate the order instead.

The Court noted that although an appeal as of right may be taken for certain orders, a "sua sponte" order does not allow for an appeal. (see Northside Studios, Inc. v Treccagnoli, 262 AD2d 469 [2d Dept 1999]; Village of Savona v Soles, 84 AD2d 683, 684 [4th Dept 1981]) Appellants contend that if that is true, they "had no avenue of appeal and that, in effect, the ruling of the trial court was unreviewable". However, the Court reasoned that Appellants could have made a motion to vacate the order, and if necessary, appeal of that motion would be possible. Appellants also argued that the sua sponte order created a record sufficient for judicial review and furthermore, all sanctions against attorneys should be per se appealable. The Court concluded that both arguments were in error because although in this case there might have been a sufficient record, future orders may not be similar. To allow appeal in this case would be to "overwrite" CPLR § 5701 (a)(2), an effect not desired by the Court. Thus, the Court of Appeals affirmed the Appellate Division's dismissal.