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Person v. Einhorn

Appellate Division of the Supreme Court of New York, First Department
Oct 4, 2007
44 A.D.3d 363 (N.Y. App. Div. 2007)

Opinion

No. 833.

October 4, 2007.

Appeal from order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered March 2, 2006, which sua sponte dismissed the complaint upon defendant Michael Einhorn's motion, pursuant to CPLR 3211 (a) (2), to dismiss the second cause of action as to plaintiff Carl Person only and to stay the action pending arbitration, unanimously dismissed, without costs.

Carl E. Person, New York, appellant pro se and for appellants.

Michael A. Einhorn, respondent pro se.

Before: Mazzarelli, J.P., Sullivan, Sweeny, Malone and Kavanagh, JJ.


There is no right of appeal from an order entered sua sponte ( Sholes v Meagher, 100 NY2d 333). The proper procedure should have been for the plaintiff to move to vacate the order and appealed as of right if that motion was denied (CPLR 5701 [a] [3]). Given questions surrounding the status of the arbitration hearing, this procedure ensures that the appeal will be made on a suitable record after counsel have had an opportunity to be heard ( Davidson v Regan Fund Mgt. Ltd., 15 AD3d 172).


Summaries of

Person v. Einhorn

Appellate Division of the Supreme Court of New York, First Department
Oct 4, 2007
44 A.D.3d 363 (N.Y. App. Div. 2007)
Case details for

Person v. Einhorn

Case Details

Full title:CARL E. PERSON et al., Appellants, v. MICHAEL A. EINHORN, Respondent, et…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Oct 4, 2007

Citations

44 A.D.3d 363 (N.Y. App. Div. 2007)
2007 N.Y. Slip Op. 7380
841 N.Y.S.2d 869

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