On February 22, 2022, the First Department issued a decision in Matter of Ramirez v. Selective Advisors Group, LLC, 2022 NY Slip Op. 01134, explaining the procedure for appealing a decision that was not made in response to a motion made with proper notice, explaining:
In this case commenced in 2020, petitioner seeks to vacate a judgment of confession entered in 2012. Petitioner’s motion for a default judgment against respondent was granted on default. Respondent then moved to vacate the default and for leave to interpose an answer to the petition. Respondent did not seek dismissal of the petition. Respondent did not ask for such relief even informally; instead, it simply argued that it had meritorious defenses. The court vacated the default and dismissed the petition.
An appeal may be taken as of right from an order where the motion it decided was made upon notice. However, there is no right to appeal an order that does not decide a motion on notice. Respondent made a motion upon notice, but did not move to dismiss the petition — it sought different relief. Hence, the portion of the order that dismissed the petition was sua sponte, and not appealable as of right. The proper procedure should have been for petitioner to move to vacate the dismissal order and appeal as of right if that motion was denied. We decline to grant leave to appeal since petitioner did not move to vacate the February 2012 judgment by confession within a reasonable time.
(Internal quotations and citations omitted) (emphasis added).