Opinion
Argued June 25, 1999
October 21, 1999
Bennett, Rice Schure, LLP, Rockville Centre, N.Y. (Kevin P. McDonough of counsel), for appellant-respondent.
Bingham Dana, LLP, New York, N.Y. (Mark M. Elliott and Christine A. Button of counsel), for respondents-appellants.
SONDRA MILLER, J.P., THOMAS R. SULLIVAN, MYRIAM J. ALTMAN, LEO F. McGINITY, JJ.
DECISION ORDER
In an action to recover a real estate broker's commission, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Segal, J.), entered July 7, 1998, as granted the defendants' motion to dismiss the complaint, and the defendants cross-appeal from so much of the same order as, upon granting their motion, granted the plaintiff leave to plead again pursuant to CPLR 3211(e).
ORDERED that the appeal is dismissed for failure to perfect the same in accordance with the rules of this court (see, 22 NYCRR 670.8[c], [e]); and it is further,
ORDERED that the order is affirmed insofar as cross-appealed from; and it is further,
ORDERED that the plaintiff is awarded one bill of costs.
Contrary to the defendants' contentions, the Supreme Court providently exercised its discretion when, in granting the defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(7), it permitted the plaintiff to plead again (see, CPLR 3211[e]). The court possessed the discretion to award this relief to the plaintiff notwithstanding the plaintiff's failure to request it in its opposition papers (see,Sanders v. Schiffer, 39 N.Y.2d 727 ; Annicaro v. Structurtone, 175 A.D.2d 546 ; Zambito v. Ryan, 125 A.D.2d 462 ; Boothe v. Weiss, 107 A.D.2d 730 ; Maney v. Maloney, 101 A.D.2d 403 ). Accordingly, it is academic as to whether it was appropriate for the plaintiff to request that relief in a letter submitted after the return date of the motion. Furthermore, on the instant record we are satisfied that the plaintiff demonstrated "good ground" to plead again (CPLR 3211 [e]; see, Getreu v. Plaxall, Inc, ___ A.D.2d ___ [2d Dept., May 24, 1999];Gershner v. Sisca, 253 A.D.2d 785 ; Buck v. Cimino, 243 A.D.2d 681 ;Werner v. Katal Country Club, 234 A.D.2d 659 ).
S. MILLER, J.P., SULLIVAN, ALTMAN, and McGINITY, JJ., concur.