Opinion
2014-10-22
Charles BONO, appellant, v. Carol DuBOIS, respondent.
Reiter & Zipern, Suffern, N.Y. (Arnold E. Reiter of counsel), for appellant.
Affirmed as modified.
Reiter & Zipern, Suffern, N.Y. (Arnold E. Reiter of counsel), for appellant. WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, and BETSY BARROS, JJ.
In an action to recover on a promissory note, the plaintiff appeals from an order of the Supreme Court, Orange County (Bartlett, J.), dated October 30, 2013, which denied his unopposed renewed motion pursuant to CPLR 3215(a) for leave to enter a judgment on the issue of liability against the defendant upon her failure to appear or answer, and, sua sponte, dismissed the complaint pursuant to CPLR 3215(c).
ORDERED that on the Court's own motion, the notice of appeal from so much of the order as, sua sponte, dismissed the complaint is deemed an application for leave to appeal from that portion of the order, and leave to appeal is granted ( see CPLR 5701[c] ); and it is further,
ORDERED that the order is modified, on the law, by deleting the provision thereof which, sua sponte, dismissed the complaint; as so modified, the order is affirmed, without costs or disbursements.
There is no proof in the record that the plaintiff submitted an affidavit of service by mail of an additional copy of the summons upon the defendant's residence or last known residence in compliance with the additional service requirement of CPLR 3215(g)(3) ( see Bunch v. Dollar Budget, Inc., 12 A.D.3d 391, 783 N.Y.S.2d 829; Schilling v. Maren Enters., 302 A.D.2d 375, 376, 754 N.Y.S.2d 564; Ocuto Blacktop & Paving Co. v. Trataros Constr., 277 A.D.2d 919, 920, 715 N.Y.S.2d 565; Rafa Enters. v. Pigand Mgt. Corp., 184 A.D.2d 329, 586 N.Y.S.2d 888). Accordingly, the plaintiff's renewed motion for leave to enter a judgment on the issue of liability against the defendant was properly denied.
However, since the plaintiff's initial motion for leave to enter a judgment against the defendant upon her failure to appear or answer was made within one year of the default, and the plaintiff did not abandon the action, there was no basis for the Supreme Court to, sua sponte, dismiss the complaint pursuant to CPLR 3215(c) ( see U.S. Bank N.A. v. Poku, 118 A.D.3d 980, 989 N.Y.S.2d 75; Mortgage Elec. Registration Sys., Inc. v. Smith, 111 A.D.3d 804, 806, 975 N.Y.S.2d 121; Jones v. Fuentes, 103 A.D.3d 853, 962 N.Y.S.2d 263; Brown v. Rosedale Nurseries, 259 A.D.2d 256, 257, 686 N.Y.S.2d 22). Accordingly, the Supreme Court erred in, sua sponte, dismissing the complaint.