Appeals from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered March 28, 2006, and from a judgment of the same court entered May 25, 2006. The order granted defendant's motion to dismiss the complaint and the judgment was entered pursuant thereto.

Appeal from order dismissed.

Judgment unanimously reversed without costs, order granting motion to dismiss the complaint vacated, and matter remanded to the court below for all further proceedings.

The order being appealed granted defendant's oral application to dismiss the complaint. As the motion was not made on notice, no appeal lies as of right from the order deciding the motion (see CCA 1702 [a] [2]; CPLR 2211; Bottiglier v Reilly, 15 Misc 3d 135[A], 2007 NY Slip Op 50750[U] [App Term, 9th & 10th Jud Dists]). It should be noted that the appeal from the order would, in any event, have to be dismissed as it was superseded by the judgment entered pursuant thereto (see Matter of Aho, 39 NY2d 241, 248 [1976]).

With respect to the appeal from the judgment, we note that the record on appeal is inadequate in that it cannot be determined precisely what documents were submitted to the court for its consideration and the transcript of the oral argument on the motion indicates that no sworn testimony was taken. In view of the foregoing, the propriety of the judgment cannot be determined. Accordingly, the judgment must be reversed, the order vacated and the matter [*2]remanded for all further proceedings.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: October 03, 2007