Edith Bolte Kutz Trust v Atlantic Coast Construction, LLC

Edith Bolte Kutz Trust v Atlantic Coast Constr., LLC 2006 NY Slip Op 06064 [32 AD3d 377] August 1, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, October 11, 2006

Edith Bolte Kutz Trust, Appellant,
v
Atlantic Coast Construction, LLC, Respondent.

—[*1]

In an action to recover on a mortgage note brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the plaintiff appeals from an order of the Supreme Court, Westchester County (Nastasi, J.), dated February 8, 2006, which denied the motion and, sua sponte, dismissed the action.

Ordered that on the Court's own motion, the notice of appeal from so much of the order as, sua sponte, dismissed the action, is treated as an application 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 reversed, on the law, with costs, the action is reinstated, and the matter is remitted to the Supreme Court, Westchester County, for a determination on the merits of the motion.

Contrary to the Supreme Court's determination, the plaintiff established that it properly commenced this action by submitting a copy of the summons with the notice of motion, and supporting papers, date-stamped by the Westchester County Clerk on September 29, 2005 (see CPLR 304, 3213; Matter of Progressive Northeastern Ins. Co. v Frenkel, 8 AD3d 390, 391 [2004]). The plaintiff also submitted a copy of the request for judicial intervention, and receipt for the filing fee, both date-stamped by the Westchester County Clerk on September 29, 2005. The filing of papers with the Westchester County Clerk is tantamount to furnishing papers to the court pursuant to CPLR 2214 (c) (cf. Lue v Daniels, 284 AD2d 508 [2001]). Accordingly, the Supreme Court's sua sponte dismissal of this action was improper. Since the Supreme Court did not consider the merits of the motion, the [*2]matter must be remitted to the Supreme Court, Westchester County, for such a determination. Florio, J.P., Santucci, Mastro, Rivera and Covello, JJ., concur.