An unsigned OSC on appeal – procedure.

This case is one every litigator in New York should understand, because it exposes a procedural trap that can cost your client an appeal if you don’t recognize what the trial court actually did.

The Case: Gluck v Hirsch

Gluck v Hirsch, 2018 NY Slip Op 05828 (2d Dept. 2018)

The Hirsches were facing foreclosure and submitted a proposed order to show cause seeking to vacate a judgment of foreclosure and sale. After oral argument, the Supreme Court declined to sign it — but it didn’t just write “declined to sign” and hand it back. The court made a handwritten notation that the Hirsches “failed to demonstrate a meritorious defense to the action” and “failed to submit proof of misconduct by the plaintiff’s attorney.”

That notation is what changes everything.

Background: How Orders to Show Cause Normally Work

For practitioners who don’t deal with this every day, here’s the setup. Under CPLR 2214, a party can ask the court to sign an order to show cause (“OSC”) in lieu of a notice of motion. The OSC is procedurally useful because the court sets the return date and can include a temporary restraining order or stay — something you can’t get with a regular notice of motion. In foreclosure defense, OSCs are used constantly because you often need to stop a sale while the motion is pending.

The catch: signing the OSC is entirely discretionary. As Siegel puts it in NY Practice § 248, whether the circumstances constitute a “proper case” for an OSC is up to the judge who receives it. A court can simply decline to sign, and there’s nothing inherently wrong with that.

The Normal Remedy: CPLR 5704

When a trial court refuses to sign an OSC, the standard remedy is straightforward. Under CPLR 5704, you walk the application over to the Appellate Division (or Appellate Term, depending on the court below). You present the papers, explain why the lower court should have signed the OSC, and the appellate court can sign it themselves. No leave to appeal is needed. No motion practice. You just go.

This is a well-understood procedure. Most practitioners who have dealt with an unsigned OSC know the 5704 route.

The Court’s Language from Gluck

From the Second Department’s decision:

“The court in a proper case may grant an order to show cause, to be served in lieu of a notice of motion, at a time and in a manner specified therein” (CPLR 2214). Whether the circumstances constitute a “proper case” for the use of an order to show cause instead of a notice of motion is a matter within the discretion of the court to which the proposed order is presented (see Siegel, NY Prac § 248). Here, under the particular circumstances of this case, this was a proper case for the use of an order to show cause, and the Supreme Court improvidently exercised its discretion in declining to sign the proposed order to show cause (see Matter of Georghakis v Matarazzo, 123 AD3d 711, 711).

The Appellate Division granted leave, stayed the foreclosure sale pending the appeal, and ultimately reversed.

What Happened Here — and Why It Matters

Here’s where Gluck v Hirsch gets interesting. The Supreme Court didn’t merely decline to sign the OSC. By writing a substantive notation explaining why it was declining — evaluating the merits of the proposed motion, finding no meritorious defense, and finding no proof of attorney misconduct — the court effectively decided the motion on its merits. It did so without any responsive papers from the opposing side and without full briefing.

That changes the procedural posture entirely. A bare refusal to sign an OSC is not an “order” in the appellate sense — it’s a ministerial act, and CPLR 5704 is your remedy. But when the court goes further and rules on the substance of the application, the refusal to sign transforms into what amounts to an order on a motion decided without notice to all parties. And an order requires leave to appeal under the standard appellate rules.

The Second Department recognized exactly this. It granted the Hirsches leave to appeal and stayed the foreclosure sale pending resolution. On the merits, the court found that the Supreme Court “improvidently exercised its discretion” — this was a proper case for an OSC, and the lower court should have signed it.

My Take

I flagged this case because the procedural distinction it draws is one that can trip up even experienced attorneys.

Most lawyers know that when a judge won’t sign your OSC, you take it to the Appellate Division under CPLR 5704. What they don’t always recognize is the moment when the court’s refusal crosses the line from a ministerial act into a substantive ruling. Once the judge writes down reasons — particularly reasons that go to the merits of the underlying motion — you’re no longer dealing with a simple unsigned OSC. You’re dealing with an order, and you need to treat it like one.

If you take the CPLR 5704 route when the court has actually issued a substantive ruling, you may be using the wrong vehicle entirely. And if you file for leave to appeal when the court only declined to sign without comment, you’ve wasted time and money on unnecessary motion practice.

The practical lesson: read the notation carefully.

• If the judge just wrote “declined to sign” or simply handed back the papers → use CPLR 5704. Walk it up to the Appellate Division or Appellate Term. No leave needed.
• If the judge wrote anything that evaluates the substance of your application — the strength of your defenses, the sufficiency of your evidence, the merits of your claim — you likely have an order on your hands. You need leave to appeal, and the timeline and procedural requirements are different.

Getting this wrong in either direction has real consequences. In a foreclosure case like Gluck, the difference could be whether you stop the sale in time or whether your client loses their home while you’re pursuing the wrong appellate remedy.

Gluck v Hirsch is a clean illustration of this distinction, and the Second Department got it right on both the procedural and substantive points.

Key Statutes

• CPLR 2214 — Governs motions and orders to show cause; court discretion to sign an OSC “in a proper case”
• CPLR 5704 — Permits a party to seek appellate relief when a lower court refuses to grant an order “authorized by law”

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