Rosen v. Polgar

276 A.D.2d 781, 715 N.Y.S.2d 155, 2000 N.Y. App. Div. LEXIS 10943

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 30, 2000
• Status: Published

Opinion

In an action to recover damages for negligence, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Tannenbaum, J.), dated July 9, 1999, which, inter alia, denied his motion for, among other things, leave to enter a judgment upon the defendants’ alleged failure to appear or answer, and, sua sponte, dismissed the claim for punitive damages and transferred the action to the New York City Civil Court.

Ordered that on the Court’s own motion, so much of the notice of appeal as purports to appeal from that part of the order made sua sponte is treated as an application for leave to appeal from that part of the order, and leave to appeal is granted (see, CPLR 5701 [c]); and it is further,

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the plaintiffs motion for, among other things, leave to enter a judgment upon the defendants’ alleged failure to appear or answer (see, CPLR 3215, 2005; Matter of Dyno v Rose, 260 AD2d 694, 698; Epps v LaSalle Bus, 271 AD2d 400; Matter of Ping Lee v City of New York, 233 AD2d 510). The Supreme Court also properly dismissed the plaintiffs claim to recover punitive damages (see, Rocanova v Equitable Life Assur. Socy., 83 NY2d 603; Garrity v Lyle Stuart, Inc., 40 NY2d 354; Suffolk Sports Ctr. v Belli Constr. Corp., 212 AD2d 241).

The plaintiffs remaining contentions are without merit. Bracken, J. P., Santucci, Thompson and Sullivan, JJ., concur.