Opinion
2005-559 KC.
Decided March 9, 2006.
Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered April 11, 2005. The order, insofar as appealed from as limited by the brief, provided that "No further O.S.C. [order to show cause] to be given."
Appeal dismissed.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
Defendant limits her appeal from so much of the order granting a stay of execution of the warrant of eviction in an ejectment action, as recited that "[n]o further [order to show cause] to be given." We conclude that said branch of the order is not appealable as of right. It decided no demand for relief made on notice to defendant (CPLR 5701 [a] [2]) and was therefore sua sponte ( Sholes v. Meagher, 100 NY2d 333, 335). Defendant's remedy was a motion to vacate that portion of the order, thereby ensuring that the appeal is "made on a suitable record" and "an opportunity to be heard" ( Davidson v. Regan Fund Mgt. Ltd., 15 AD3d 172, 172-173; see CPLR 5701 [a] [3]; Serradilla v. Lords Corp., 12 AD3d 279, 280 [citing the absence "of any subsequent motion to vacate that would have properly placed the issues appellant now seeks to raise before th(e) Court"]). While in the interest of judicial economy we may deem the notice of appeal as a motion for leave to appeal and grant such leave ( Serradilla v. Lords Corp., 12 AD3d at 280; see CPLR 5701 [c]), we decline to do so upon the facts herein ( e.g. Hladun-Goldmann v. Rentsch Assoc., 8 AD3d 73).
Pesce, P.J., Golia and Rios, JJ., concur.