Beth Israel Med. Ctr. v Rodriguez

[*1] Beth Israel Med. Ctr. v Rodriguez 2009 NY Slip Op 50619(U) [23 Misc 3d 128(A)] Decided on April 9, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 9, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570018/09.

Beth Israel Medical Center, Plaintiff-Appellant,

against

James Rodriguez, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), entered June 26, 2008, which, sua sponte, dismissed the complaint with prejudice.

Per Curiam.

Order (Joan M. Kenney, J.), entered June 26, 2008, reversed, without costs, complaint reinstated and matter remanded for trial.

While the dismissal order is not appealable as of right because it did not decide a motion made on notice (CCA 1702[c]), in the interest of judicial economy we deem the notice of appeal to be a motion for leave to appeal and grant such leave (see Alveranga-Duran v Whitehall Apts., 40 AD3d 287 [2007]).

The sua sponte dismissal of plaintiff's complaint at a pre-trial conference, apparently based on a single, unsigned letter said to have been written by a representative of nonparty Oxford Insurance Company, was error. Even assuming the authenticity and admissibility of the correspondence, at this juncture, it did not conclusively establish a defense as a matter of law, warranting the drastic measure of an unsolicited dismissal prior to trial.

THIS CONSTITUTE THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: April 09, 2009