Matter of Sheive v Holley Volunteer Fire Co.

Matter of Sheive v Holley Volunteer Fire Co. 2016 NY Slip Op 08731 Decided on December 23, 2016 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 23, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: CENTRA, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.
1195 CA 15-01942

[*1]IN THE MATTER OF LAUREN L. SHEIVE, PETITIONER-PLAINTIFF-APPELLANT,

v

HOLLEY VOLUNTEER FIRE COMPANY, RESPONDENT-DEFENDANT-RESPONDENT.

WINSTON & STRAWN LLP, NEW YORK CITY (ANUP K. MISRA OF COUNSEL), FOR PETITIONER-PLAINTIFF-APPELLANT.

Appeal from a judgment (denominated order) of the Supreme Court, Orleans County (James P. Punch, A.J.), entered February 19, 2015 in a CPLR article 78 proceeding and a declaratory judgment action. The judgment denied and dismissed the petition-complaint.

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs and the petition-complaint is reinstated.

Memorandum: In this hybrid CPLR article 78 and declaratory judgment action, petitioner-plaintiff (petitioner) appeals from a judgment denying and dismissing the petition-complaint (petition). We agree with petitioner that Supreme Court improvidently exercised its discretion in sua sponte dismissing the petition. " [U]se of the [sua sponte] power of dismissal must be restricted to the most extraordinary circumstances,' " and no such extraordinary circumstances are present in this case (CitiMortgage, Inc. v Carter, 140 AD3d 1663, 1663; see Oak Hollow Nursing Ctr. v Stumbo, 117 AD3d 698, 699; Hurd v Hurd, 66 AD3d 1492, 1493; cf. Wehringer v Brannigan, 232 AD2d 206, 207, appeal dismissed 89 NY2d 980, reconsideration denied 89 NY2d 1087). In sua sponte dismissing the petition, "the court deprived [petitioner] of notice of what was effectively the court's own motion for summary judgment . . . , thereby depriving [her] of [her] opportunity to lay bare [her] proof . . . and rendering meaningful appellate review of the propriety of the court's determination on the merits impossible" (Sena v Nationwide Mut. Fire Ins. Co., 198 AD2d 345, 346; see Hurd, 66 AD3d at 1493; Abinanti v Pascale, 41 AD3d 395, 396; Jacobs v Mostow, 23 AD3d 623, 623-624). We therefore reverse the judgment and reinstate the petition.

In light of our determination, we do not address petitioner's

remaining contention.

Entered: December 23, 2016

Frances E. Cafarell

Clerk of the Court