Opinion
9536 Index 152361/13
06-06-2019
NEW GLOBALTEX CO., LTD., Plaintiff–Appellant, v. Zhe LIN, Defendant–Respondent, Imperial International Trading Inc., Defendant.
Soong & Liu, New York (Arthur J. Soong of counsel), for appellant. Zane and Rudofsky, New York (Eric S. Horowitz of counsel), for respondent.
Soong & Liu, New York (Arthur J. Soong of counsel), for appellant.
Zane and Rudofsky, New York (Eric S. Horowitz of counsel), for respondent.
Sweeny, J.P., Gische, Webber, Oing, Moulton, JJ.
Order, Supreme Court, New York County (Eileen Bransten, J.), entered July 23, 2018, which, sua sponte, dismissed the complaint, unanimously reversed, on the law, without costs, to reinstate the complaint and the default judgment, and the matter is remanded to the motion court to consider the merits of defendant's motion to vacate the default judgment.
An order issued sua sponte is not appealable as of right (see Sholes v. Meagher, 100 N.Y.2d 333, 335, 763 N.Y.S.2d 522, 794 N.E.2d 664 [2003] ). However, given the nature of the motion court's sua sponte relief in dismissing the complaint pursuant to CPLR 3215(c), we deem the notice of appeal to be a motion for leave to appeal, and grant such leave (see Ray v. Chen, 148 A.D.3d 568, 50 N.Y.S.3d 62 [1st Dept. 2017] ; CPLR 5701[c] ).
The record is clear that plaintiff had moved for a default judgment within one year, and thus, the motion court's sua sponte vacature of the judgment and dismissal of the complaint as untimely was in error (see Brown v. Rosedale Nurseries, 259 A.D.2d 256, 257, 686 N.Y.S.2d 22 [1st Dept. 1999] ; US Bank N.A. v. Dorestant, 131 A.D.3d 467, 469, 15 N.Y.S.3d 142 [2d Dept. 2015] ). In view of this decision, the merits of defendant's motion to vacate the default judgment are no longer moot and it is remanded back to the trial court for consideration on the merits.