Opinion
13899N Index No. 25537/16 Case No. 2020-03703
05-20-2021
MJC ELECTRIC, INC., Plaintiff–Appellant, v. HUDSON MERIDIAN CONSTRUCTION GROUP, LLC, Defendant–Respondent, Noel Hayes et al., Defendants.
Richard G. Monaco, South Salem, for appellant. Rich, Intelisano & Katz, LLP, New York (Robert J. Howard of counsel), for respondent.
Richard G. Monaco, South Salem, for appellant.
Rich, Intelisano & Katz, LLP, New York (Robert J. Howard of counsel), for respondent.
Renwick, J.P., Manzanet–Daniels, Mazzarelli, Mendez, JJ.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered on or about February 26, 2020, which denied plaintiff's motion to vacate a status conference order that sua sponte dismissed the complaint, unanimously reversed, on the law and the facts, without costs, the motion granted and the complaint reinstated.
Contrary to defendant Hudson's argument, the status conference order sua sponte dismissing the complaint was not appealable as of right ( CPLR 5701[a][2] ; Sholes v. Meagher, 100 N.Y.2d 333, 763 N.Y.S.2d 522, 794 N.E.2d 664 [2003] ; Armstrong v. B.R. Fries & Assoc., Inc., 95 A.D.3d 697, 945 N.Y.S.2d 74 [1st Dept. 2012] ). Plaintiff followed proper procedure by "apply[ing] to vacate the order and then appeal[ing] from the denial of that motion so that a suitable record [could] be made and counsel afforded the opportunity to be heard on the issues" ( Board of Educ. of City Sch. Dist. of City of N.Y. v. Grullon, 117 A.D.3d 572, 573, 986 N.Y.S.2d 85 [1st Dept. 2014] [citations omitted]).
The court improvidently exercised its discretion in imposing the extreme penalty of dismissal without giving plaintiff notice that such a sanction might be imminent (see Armstrong, 95 A.D.3d at 698, 945 N.Y.S.2d 74 ; see also Michaluk v. New York City Health & Hosps. Corp., 169 A.D.3d 496, 94 N.Y.S.3d 47 [1st Dept. 2019] ). Further, the sanction of dismissal was not warranted, and would not have been warranted even upon a motion on notice, based on plaintiff's noncompliance with one order (see Butler v. Knights Collision Experts, Inc., 165 A.D.3d 406, 82 N.Y.S.3d 716 [1st Dept. 2018] ; see also Ray v. Chen, 148 A.D.3d 568, 50 N.Y.S.3d 62 [1st Dept. 2017] ).