Opinion
5235N, M-5548, M-5614
February 1, 2005.
Appeal from order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered July 16, 2004, which sua sponte referred the case to a special referee for hearing and determination of damages, unanimously dismissed, without costs.
Before: Mazzarelli, J.P., Saxe, Friedman, Sullivan and Williams, JJ., concur.
No appeal lies from a sua sponte order ( see Sholes v. Meagher, 100 NY2d 333). A motion to vacate the order ( see CPLR 5701 [a] [3]), which we recommend as the suitable vehicle to challenge what on its face appears to be an improper determination, would ensure that an appeal could be made on a suitable record after counsel have had an opportunity to be heard. The parties' motion and cross motion to strike each other's brief, or, in the alternative, to enlarge the record on appeal, are denied as academic.