Sena v. Nationwide Mutual Fire Insurance

198 A.D.2d 345, 603 N.Y.S.2d 173, 1993 N.Y. App. Div. LEXIS 10664

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1993
• Status: Published

Opinion

In an action to recover moneys allegedly owed under a policy of homeowner’s insurance, the plaintiffs appeal from an order of the Supreme Court, Putnam County (Dickinson, J.), dated July 9, 1991, which sua sponte dismissed the complaint.

Ordered that on the Court’s own motion, the plaintiffs’ notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701 [c]); and it is further,

Ordered that the order is reversed, on the law, with costs, and the complaint is reinstated.

Ordinarily, an order issued sua sponte which does not decide a motion on notice, is not appealable as of right and an appeal therefrom is subject to dismissal (see, CPLR 5701 [a] [2]; [c]; Matter of Baby Girl, 189 AD2d 763; Sheik v Sheik, 187 AD2d 572). However, a notice of appeal may be treated as an application for leave to appeal which may be granted in the interest of justice (see, Modica v Zergebel, 160 AD2d 689).

In the instant case, the interest of justice clearly warrants appellate review since the court improperly dismissed the plaintiffs’ complaint without the defendants having requested this relief (see, Soggs v Crocco, 184 AD2d 1021; Stabler v Manhattan & Bronx Surface Tr. Operating Auth., 155 AD2d 390; Blunt v Northern Oneida County Landfill, 145 AD2d 913; Gibbs v Kinsey, 120 AD2d 701; Balogh v H.R.B. Caterers, 88 AD2d 136). In so doing, the court deprived the plaintiffs of notice of what was effectively the court’s own motion for summary judgment (see, Matter of Fertig, 184 AD2d 1015; First Natl. Bank v J. & J. Milano, 160 AD2d 670), thereby depriving them of their opportunity to lay bare their proof (see, First Natl. Bank v J. & J. Milano, supra; Matter of Dental Socy. v Carey, 92 AD2d 263, affd 61 NY2d 330; Maidenbaum v Ellis Hosp., 47 AD2d 683) and rendering meaningful appellate review of the propriety of the court’s determination on the merits impossible. Thompson, J. P., Rosenblatt, Miller and Ritter, JJ., concur.