Employees Insurance v. Raghanath

288 A.D.2d 472, 733 N.Y.S.2d 894, 2001 N.Y. App. Div. LEXIS 11383

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 26, 2001
• Status: Published

Opinion

—In a proceeding, inter alia, pursuant to CPLR article 75 to stay arbitration of an uninsured motorist claim, the petitioner (1) purportedly appeals from an order of the Supreme Court, Nassau County (Adams, J.), dated January 10, 2001, which, sua sponte, adjourned the petition to provide the respondent with an opportunity to move for a change of venue, and (2) appeals, by permission, from an order of the same court dated March 16, 2001, which, sua sponte, dismissed the petition without prejudice to the filing of a new petition in a proper county.

Ordered that the purported appeal from the order dated January 10, 2001, is dismissed, as leave to appeal from that order was previously denied by decision and order of this Court dated September 5, 2001; and it is further,

Ordered that the order dated March 16, 2001 is reversed, on the law, without costs or disbursements, the petition is reinstated, and the matter is remitted to the Supreme Court, Nassau County, for farther proceedings in accordance herewith.

The order dated March 16, 2001, must be reversed, as the petitioner correctly contends that the Supreme Court erred in sua sponte dismissing the petition (see, Matter of Phoenix Ins. Co. v Casteneda, 287 AD2d 507; Matter of Travelers Indent. Co. v Nnamani, 286 AD2d 769). Since the Supreme Court did not reach the merits of the petition, we remit the matter for further proceedings. Santucci, J. P., Altman, Florio, H. Miller and Cozier, JJ., concur.