Jakco Inc. v. Fiore

285 A.D.2d 582, 727 N.Y.S.2d 914, 2001 N.Y. App. Div. LEXIS 7572

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 23, 2001
• Status: Published

Opinion

—In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from an order of the Supreme Court, Queens County (Price, J.), dated May 18, 2000, which denied their motion for leave to enter a default judgment and, sua sponte, dismissed the complaint.

Ordered that on the Court’s own motion, that portion of the notice of appeal which purports to appeal as of right from so much of the order as sua sponte dismissed the complaint, is deemed to be a motion for leave to appeal from that portion of the order, and leave to appeal is granted (see, CPLR 5701 [c]); and it is further,

Ordered that the order is affirmed, without costs or disbursements.

The Supreme Court did not err in denying the plaintiffs’ motion for leave to enter a default judgment against the defendants and in dismissing the complaint since the plaintiffs’ attempted service on the defendants did not comply with the directives contained in a prior order of the court as to how service should be effectuated. Ritter, J. P., Altman, McGinity, Smith and Cozier, JJ., concur.