Key Takeaway
Appeals court procedure when a trial court declines to sign a proposed order to show cause, including when leave to appeal is required versus direct appellate review.
Gluck v Hirsch, 2018 NY Slip Op 05828 (2d Dept. 2018)
“After oral argument, the court declined to sign the proposed order to show cause, with a handwritten notation that the Hirsches failed to demonstrate a meritorious defense to the action and that the Hirsches failed to submit proof of misconduct by the plaintiff’s attorney.
By decision and order on motion dated December 22, 2015, this Court granted the Hirsches leave to appeal from the Supreme Court’s order declining to sign the proposed order to show cause and stayed the foreclosure sale of the subject premises pending the hearing and determination of the appeal (see Gluck v Hirsch, 2015 NY Slip Op 94403).
“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 [*2]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).”
I post this because generally, the remedy for an unsigned OSC is to bring the application to the Appellate Division (CPLR 5704) or Appellate Term (CPLR 5704). Here, because the Court ruled on the merits of the OSC without any responsive papers, the declined OSC became an order on motion not on notice, requiring leave.
Procedure.
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Legal Update (February 2026): Since this 2018 post, CPLR provisions governing orders to show cause and appellate procedures may have been amended through legislative updates or court rule changes. Practitioners should verify current CPLR 2214 and 5704 requirements, as well as any updated Appellate Division rules regarding appeals from unsigned orders to show cause, as procedural standards and discretionary factors considered by courts may have evolved.
