Blake v Blake

Blake v Blake 2017 NY Slip Op 08738 Decided on December 14, 2017 Appellate Division, First 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 14, 2017
Gische, J.P., Webber, Oing, Singh, Moulton, JJ.
5224 300484/15

[*1]Maria Blake, Plaintiff-Appellant,

v

Gregory Blake, Defendant-Respondent.

Felder, Felder and Nottes, PC, New York (Daniel H. Stock of counsel), for appellant.

Elliott Scheinberg, New City, for respondent.

Order, Supreme Court, New York County (Frank P. Nervo, J.), entered April 20, 2017, which, in this divorce action, sua sponte dismissed the complaint, unanimously reversed, on the law and in the exercise of discretion, without costs, and the complaint reinstated.

A sua sponte order is not appealable as of right (see CPLR 5701[a][2]; Sholes v Meagher, 100 NY2d 333, 335 [2003]). However, given the extraordinary nature of the sua sponte relief, that is, dismissal of the complaint, the parties' competing claims, and the court's failure to identify a legal basis for dismissing the complaint other than that an action between the parties was pending in New Jersey seeking the same relief - a ground it had previously rejected in retaining jurisdiction over the financial issues ancillary to the divorce action - we deem the notice of appeal from the order to be a motion for leave to appeal, and grant such leave (see CPLR 5701[c]; see e.g. All Craft Fabricators, Inc. v ATC Assoc., Inc., 153 AD3d 1159 [1st Dept 2017]; Seradilla v Lords Corp., 12 AD3d 279, 280 [1st Dept 2004]).

A court's power to dismiss a complaint, sua sponte, "should be used sparingly and only in extraordinary circumstances" (Ray v Lee Chen, 148 AD3d 568, 569 [1st Dept 2017] [internal quotation marks omitted]). Here, based on the record before us, no such circumstances exist to warrant dismissal. Further, in the absence of notice to plaintiff wife that the complaint would be dismissed, "the court was virtually without jurisdiction to grant the relief afforded" to defendant husband (id. [internal quotation marks omitted]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 14, 2017

CLERK