Opinion
14981 Index No. 156730/15 Case No. 2020–03778
01-06-2022
In the Matter of ALLIANCE TO END CHICKENS AS KAPOROS, etc., et al., Petitioners/Plaintiffs–Appellants, v. NEW YORK CITY POLICE DEPARTMENT, et al., Respondents/Defendants–Respondents, Central Yeshiva Tomchei Tmimim Lubavitz, Inc., et al., Defendants.
Nora Constance Marino, Great Neck, for appellants. Georgia M. Pestana, Corporation Counsel, New York (Antonella Karlin of counsel), for respondents.
Nora Constance Marino, Great Neck, for appellants.
Georgia M. Pestana, Corporation Counsel, New York (Antonella Karlin of counsel), for respondents.
Kern, J.P., Mazzarelli, Gesmer, Gonza´lez, Higgitt, JJ.
Appeal from order, Supreme Court, New York County (Debra A. James, J.), entered on or about August 20, 2020, which declined to sign plaintiffs’ order to show cause to renew the City defendants’ motion to dismiss the proceeding and the conversion of the plenary action to a CPLR article 78 proceeding, unanimously dismissed, without costs, as taken from a nonappealable paper.
No appeal lies from an order declining to sign an order to show cause, since it is an ex parte order that does not decide a motion made on notice (see CPLR 5701[a][2] ; Chi Young Lee v. Osorio, 184 A.D.3d 417, 123 N.Y.S.3d 494 [1st Dept. 2020] ; Kalyanaram v. New York Inst. of Tech., 91 A.D.3d 532, 532, 936 N.Y.S.2d 543 [1st Dept. 2012] ).
No party requests that we consider relief under CPLR 5704(a). In any event, we note that Supreme Court providently exercised its discretion in declining to sign plaintiffs’ proposed order to show cause (see Matter of Greenhaus v. Milano, 242 A.D.2d 383, 384, 661 N.Y.S.2d 664 [2d Dept. 1997] ). Plaintiffs sought to bring on a motion to renew an order that denied the petition and dismissed the proceeding, thus terminating the special proceeding. Renewal is not available under such circumstances (see Maddux v. Schur, 53 A.D.3d 738, 861 N.Y.S.2d 814 [3d Dept. 2008] ). Instead, an application to vacate a final judgment must be brought pursuant to CPLR 5015 (see Matter of Voelker, 191 A.D.3d 1426, 1427, 138 N.Y.S.3d 426 [4th Dep. 2021] ; Matter of McCabe v. Town of Clarkstown Bd. of Appeals, 31 A.D.3d 451, 452, 817 N.Y.S.2d 507 [2d Dept. 2006] ). This principle applies specifically in the context of a challenge to "a judgment dismissing a CPLR article 78 petition" ( McCabe, 31 A.D.3d at 452, 817 N.Y.S.2d 507 ).