Reisman v. Coleman, 1
| Decision Date | 29 April 1996 |
| Docket Number | No. 2,No. 1,1,2 |
| Citation | 641 N.Y.S.2d 690,226 A.D.2d 693 |
| Parties | Andrew REISMAN, et al., Plaintiffs, v. Cole L. COLEMAN, Defendant (Matter). In the Matter of AETNA CASUALTY & SURETY COMPANY, Appellant, v. Andrew REISMAN, Respondent (Matter). |
| Court | New York Supreme Court — Appellate Division |
Rivkin, Radler & Kremer, Uniondale (Evan H. Krinick and Michael P. Versichelli, of counsel), for appellant.
Profeta & Eisenstein, New York City (Fred R. Profeta, Jr. and Michael J. Orlofsky, of counsel), and Frenkel & Hershkowitz, New York City, for respondent (one brief filed).
Before BRACKEN, J.P., and ROSENBLATT, MILLER and FRIEDMANN, JJ.
MEMORANDUM BY THE COURT.
In a consolidated action/proceeding to recover damages for personal injuries, etc. (Matter No. 1), and pursuant to CPLR article 75 to confirm an arbitration award (Matter No. 2), the petitioner appeals from (1) an order of the Supreme Court, Kings County (Feinberg, J.), dated December 22, 1994, which, sua sponte, recalled and vacated an earlier order of the same court, dated September 26, 1994, which, inter alia, granted the petitioner's cross motion to modify and reduce the arbitration award to $50,000, and (2) an order of the same court, also dated December 22, 1994, which granted the respondent's motion to confirm the arbitration award of $100,000 and denied its cross motion.
ORDERED that, on the court's own motion, the appellant's notice of appeal from the order dated December 22, 1994, which sua sponte recalled and vacated the order dated September 26, 1994, is treated as an application for leave to appeal, and leave to appeal from that order is granted (see, CPLR 5701[c] ); and it is further,
ORDERED that the orders are reversed, on the law, with one bill of costs, and the order dated September 26, 1994, is reinstated.
It is well settled that a trial court has no revisory or appellate jurisdiction to vacate, sua sponte, its own order (see, CPLR 5019; see also, Osamwonyi v. Grigorian, 220 A.D.2d 400, 631 N.Y.S.2d 906). In this case, the parties agree that the Supreme Court exceeded its authority by, sua sponte, recalling and vacating its September 26, 1994, order, which, inter alia, granted the petitioner's cross motion to modify and reduce the arbitration award. The respondent contends, nevertheless, that the September 26, 1994, order is reviewable on appeal pursuant to CPLR 5501. We disagree. Under CPLR 5501(a)(1), an appeal from a final judgment brings up for review "any non-final judgment or order which...
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