Great Plains Capital Corp. v. Bindra

49 A.D.3d 500, 853 N.Y.2d 589

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 4, 2008
• Status: Published

Opinion

On October 18, 2006, the plaintiffs attorney failed to appear for a court-ordered deposition of the defendant Narinder Bindra. On the same day, the defendants’ attorney made an oral application before the Supreme Court to dismiss the action based on the “failure to prosecute.” The Supreme Court granted the defendants’ oral application and issued an order dated October 23, 2006, directing dismissal of the action with prejudice. By notice of motion dated January 3, 2007, the plaintiff moved, inter alia, to vacate the order dated October 23, 2006. The Supreme Court denied that branch of the plaintiffs motion which was to vacate.

The dismissal of the action with prejudice was a nullity since the defendants’ oral application to dismiss the action was made without notice to the plaintiff and an opportunity to be heard (see Xand Corp. v Reliable Sys. Alternatives Corp., 35 AD3d 849, 850 [2006]; Pelaez v Westchester Med. Ctr., 15 AD3d 375 [2005]). Accordingly, that branch of the plaintiffs motion which was to vacate the order dated October 23, 2006, directing dismissal of the action with prejudice, should have been granted. Mastro, J.P., Fisher, Florio, Angiolillo and Dickerson, JJ., concur.