Serradilla v. Lords Corp.

Nov 23, 2004
Versions:12 A.D.3d 279
785 N.Y.S.2d 433
2004 N.Y. App. Div. LEXIS 14151

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered June 3, 2004, which, in a consolidated action by the buyer of real property against her attorney for legal malpractice in the transaction and also against the seller for fraud and breach of contract, at a compliance conference, precluded the attorney from conducting certain disclosure unless he paid plaintiff a monetary sanction as a condition to excusing his noncompliance with a prior preliminary conference order, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the order vacated.

The subject order is not appealable as of right because it did not decide a motion made on notice (CPLR 5701 [a] [2]), and the record is devoid of any subsequent motion to vacate that would have properly placed the issues appellant now seeks to raise before this Court (see Sholes v Meagher, 100 NY2d 333, 335-336 [2003]). However, in the interest of judicial economy (see Egwuonwu v Simpson, 4 AD3d 500, 501 [2004]), we sua sponte deem the notice of appeal to be a motion for leave to appeal, and grant such leave (CPLR 5701 [c]; see Sholes, 100 NY2d at 335 n 1; Mulligan v New York Cornell Med. Ctr., 304 AD2d 492 [2003]; cf. Hladun-Goldmann v Rentsch Assoc., 8 AD3d 73 [2004]).

At the time of the compliance conference, the motion court had not yet consolidated the legal malpractice action against appellant with the related fraud action against the seller to which appellant was not a party. Under the circumstances, in particular, the absence of competent evidence that the two separate actions were at all relevant times being jointly processed, it was an improvident exercise of discretion to sanction appellant for noncompliance with a prior preliminary conference order that bore only the index number of the action against the seller. Concur—Tom, J.P., Sullivan, Gonzalez and Catterson, JJ.