Fergusson v Dumbacher

[*1] Fergusson v Dumbacher 2008 NY Slip Op 52547(U) [21 Misc 3d 145(A)] Decided on December 22, 2008 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 22, 2008
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Davis, J.P., Schoenfeld, Heitler, JJ
570564/06.

Claire Fergusson, Plaintiff-Appellant,

against

Joseph Dumbacher and John Dumbacher, Defendants-Respondents.

Plaintiff appeals from an order of the Civil Court

of the City of New York, New York County (Geoffrey D. Wright, J.), entered January 29, 2007, which dismissed the action as time-barred.
Per Curiam.

Order (Geoffrey D. Wright, J.), entered January 29, 2007, reversed, without costs, complaint reinstated and the matter remanded for de novo consideration of defendant's motion to dismiss the complaint for lack of in personam jurisdiction.

The traverse court erred when it, sua sponte, dismissed the action on Statute of Limitations grounds. That defense, although pleaded in defendants' answer, was neither advanced by defendants during prior motion practice nor on their present motion to dismiss for lack of personal jurisdiction. The court's unrequested grant of relief improperly eliminated the defendants' initial burden of establishing that the action was untimely and denied the pro se plaintiff a meaningful opportunity to contest the issue (see Mendez v Steen Trucking, Inc., 254 AD2d 715 [1998]; Zarintash v Kopple, 5 Misc 3d 130[A], 2004 NY Slip Op 51309[U][2004]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 22, 2008