Opinion
2002-09061
Submitted June 11, 2003.
June 30, 2003.
In an action, inter alia, to recover damages for battery, the plaintiff appeals from an order of the Supreme Court, Kings County (Barasch, J.), dated September 5, 2002, which, sua sponte, dismissed the complaint.
Rubenstein Rynecki, Brooklyn, N.Y. (Jonathan A. Fier of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and Cheryl Payer of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, HOWARD MILLER, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that on the court's own motion, the notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted ( see CPLR 5701[c]); and it is further,
ORDERED that the order is reversed, on the law, the complaint is reinstated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings before a different Justice; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
Under the circumstances of this case, the Supreme Court erred in, sua sponte, dismissing the plaintiff's complaint. The record does not support its conclusion that the plaintiff was not ready to proceed to trial.
ALTMAN, J.P., KRAUSMAN, GOLDSTEIN, H. MILLER and CRANE, JJ., concur.