Shu Bo Jiao v. Worldwide Direct Membership LLC

Appellate Terms of the Supreme Court of New York

Shu Bo Jiao v. Worldwide Direct Membership LLC

57 Misc. 3d 44, 64 N.Y.S.3d 451

Appellate Terms of the Supreme Court of New York·Decided September 27, 2017·Published

Opinion

OPINION OF THE COURT

Per Curiam.

Order, entered May 9, 2016, reversed, with $10 costs, motion granted, and matter remanded for a new trial before another judge.

At the trial of these consolidated plenary actions seeking unpaid rent, the court, sua sponte, dismissed the complaints, prior to the close of plaintiff landlord’s case, on the ground that plaintiff failed to produce a certificate of occupancy effective in 2013, when the underlying leases were signed. The court reached this conclusion even though defendants did not assert the lack of a valid certificate of occupancy as a defense in their answers or at trial, and despite plaintiff’s argument that the building was constructed prior to the certificate of occupancy requirement (see Multiple Dwelling Law § 301 [1]). In addition, the court’s oral decision dismissing the matter was never reduced to a written order or judgment.

Plaintiff’s subsequent motion, in effect, to vacate the dismissal of the actions should have been granted. The dismissal prior to the close of plaintiff’s case was premature, and deprived plaintiff of the opportunity to present his case and put forth his proof (see Griffin v Clinton Green S., LLC, 98 AD3d 41, 46-47 [2012]); and the rationale for the dismissal, based upon a defense not raised by defendants and to which plaintiff was not given an adequate opportunity to respond, offended traditional notions of fair play (see Misicki v Caradonna, 12 NY3d 511, 519 [2009]). In the circumstances, and given, inter alia, the unorthodox procedure utilized by the trial judge to swear in plaintiff’s witnesses,

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OPINION OF THE COURT

Per Curiam.

Order, entered May 9, 2016, reversed, with $10 costs, motion granted, and matter remanded for a new trial before another judge.

At the trial of these consolidated plenary actions seeking unpaid rent, the court, sua sponte, dismissed the complaints, prior to the close of plaintiff landlord’s case, on the ground that plaintiff failed to produce a certificate of occupancy effective in 2013, when the underlying leases were signed. The court reached this conclusion even though defendants did not assert the lack of a valid certificate of occupancy as a defense in their answers or at trial, and despite plaintiff’s argument that the building was constructed prior to the certificate of occupancy requirement (see Multiple Dwelling Law § 301 [1]). In addition, the court’s oral decision dismissing the matter was never reduced to a written order or judgment.

Plaintiff’s subsequent motion, in effect, to vacate the dismissal of the actions should have been granted. The dismissal prior to the close of plaintiff’s case was premature, and deprived plaintiff of the opportunity to present his case and put forth his proof (see Griffin v Clinton Green S., LLC, 98 AD3d 41, 46-47 [2012]); and the rationale for the dismissal, based upon a defense not raised by defendants and to which plaintiff was not given an adequate opportunity to respond, offended traditional notions of fair play (see Misicki v Caradonna, 12 NY3d 511, 519 [2009]). In the circumstances, and given, inter alia, the unorthodox procedure utilized by the trial judge to swear in plaintiff’s witnesses,

Shu Bo Jiao v. Worldwide Direct Membership LLC, 57 Misc. 3d 44, 64 N.Y.S.3d 451 (N.Y. Ct. App. 2017).

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Opinion

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