There is no right of appeal from a judgment based upon a sua sponte order ( Diaz v. New York Mercantile Exch., 1 A.D.3d 242). The May 1 order dismissing the complaint and resolving liability on the counterclaim in defendant's favor unless plaintiff returned to New York within a week for her deposition was made sua sponte because defendant made no motion on notice for such relief ( Sholes v. Meagher, 100 N.Y.2d 333, at 335, n2), and indeed did not ask for such relief even informally. Defendant had simply requested a "pre-motion conference" because it wanted to move for summary judgment on the ground that plaintiff's responses to discovery requests showed that she had no damages. The May 13 unconditional order implementing the sua sponte May 1 conditional order was made sua sponte because it too did not decide a motion made on notice. We decline to grant leave to appeal (CPLR 5701[c]) since the record is insufficient to permit review of the motion court's implicit finding that plaintiff's failure to appear for deposition was willful and contumacious ( see Commerce Indus. Ins. Co. v. Lib-Com, Ltd., 266 A.D.2d 142, 145). We also note that plaintiff properly moved to vacate the judgment ( see Sholes, 100 N.Y.2d at 335-336); that by order dated December 9, 2003, the judgment was vacated on condition that all disclosure be completed by the end of 2003; that plaintiff filed a notice of appeal from that order; and that she still has time to perfect that appeal.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.