Opinion
12-23-2016
In the Matter of Lauren L. SHEIVE, Petitioner–Plaintiff–Appellant, v. HOLLEY VOLUNTEER FIRE COMPANY, Respondent–Defendant–Respondent.
Winston & Strawn LLP, New York City (Anup K. Misra of Counsel), for petitioner-plaintiff-appellant.
Winston & Strawn LLP, New York City (Anup K. Misra of Counsel), for petitioner-plaintiff-appellant.
MEMORANDUM:
In this hybrid CPLR article 78 and declaratory judgment action, petitioner-plaintiff (petitioner) appeals from a judgment denying and dismissing the petition-complaint (petition). We agree with petitioner that Supreme Court improvidently exercised its discretion in sua sponte dismissing the petition. " ‘[U]se of the [sua sponte] power of dismissal must be restricted to the most extraordinary circumstances,’ " and no such extraordinary circumstances are present in this case (CitiMortgage, Inc. v. Carter, 140 A.D.3d 1663, 1663, 32 N.Y.S.3d 786 ; see Oak Hollow Nursing Ctr. v. Stumbo, 117 A.D.3d 698, 699, 985 N.Y.S.2d 269 ; Hurd v. Hurd, 66 A.D.3d 1492, 1493, 885 N.Y.S.2d 655 ; cf. Wehringer v. Brannigan, 232 A.D.2d 206, 207, 647 N.Y.S.2d 770, appeal dismissed 89 N.Y.2d 980, 655 N.Y.S.2d 879, 678 N.E.2d 491, reconsideration denied 89 N.Y.2d 1087, 659 N.Y.S.2d 860, 681 N.E.2d 1307 ). In sua sponte dismissing the petition, "the court deprived [petitioner] of notice of what was effectively the court's own motion for summary judgment ..., thereby depriving [her] of [her] opportunity to lay bare [her] proof ... and rendering meaningful appellate review of the propriety of the court's determination on the merits impossible" (Sena v. Nationwide Mut. Fire Ins. Co., 198 A.D.2d 345, 346, 603 N.Y.S.2d 173 ; see Hurd, 66 A.D.3d at 1493, 885 N.Y.S.2d 655 ; Abinanti v. Pascale, 41 A.D.3d 395, 396, 837 N.Y.S.2d 740 ; Jacobs v. Mostow, 23 A.D.3d 623, 623–624, 806 N.Y.S.2d 213 ). We therefore reverse the judgment and reinstate the petition.
In light of our determination, we do not address petitioner's remaining contention.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs and the petition-complaint is reinstated.
CENTRA, J.P., CARNI, NEMOYER, CURRAN, and TROUTMAN, JJ., concur.