Opinion
November 15, 1993
Appeal from the Supreme Court, Putnam County (Dickinson, J.).
Ordered that on the Court's own motion, the plaintiffs' 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, with costs, and the complaint is reinstated.
Ordinarily, an order issued sua sponte which does not decide a motion on notice, is not appealable as of right and an appeal therefrom is subject to dismissal (see, CPLR 5701 [a] [2]; [c]; Matter of Baby Girl, 189 A.D.2d 763; Sheik v Sheik, 187 A.D.2d 572). However, a notice of appeal may be treated as an application for leave to appeal which may be granted in the interest of justice (see, Modica v Zergebel, 160 A.D.2d 689).
In the instant case, the interest of justice clearly warrants appellate review since the court improperly dismissed the plaintiffs' complaint without the defendants having requested this relief (see, Soggs v Crocco, 184 A.D.2d 1021; Stabler v Manhattan Bronx Surface Tr. Operating Auth., 155 A.D.2d 390; Blunt v Northern Oneida County Landfill, 145 A.D.2d 913; Gibbs v Kinsey, 120 A.D.2d 701; Balogh v H.R.B. Caterers, 88 A.D.2d 136). In so doing, the court deprived the plaintiffs of notice of what was effectively the court's own motion for summary judgment (see, Matter of Fertig, 184 A.D.2d 1015; First Natl. Bank v J. J. Milano, 160 A.D.2d 670), thereby depriving them of their opportunity to lay bare their proof (see, First Natl. Bank v J. J. Milano, supra; Matter of Dental Socy. v Carey, 92 A.D.2d 263, affd 61 N.Y.2d 330; Maidenbaum v Ellis Hosp., 47 A.D.2d 683) and rendering meaningful appellate review of the propriety of the court's determination on the merits impossible. Thompson, J.P., Rosenblatt, Miller and Ritter, JJ., concur.