Adams v Estick

[*1] Adams v Estick 2020 NY Slip Op 51117(U) Decided on September 11, 2020 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 11, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, DAVID ELLIOT, JJ
2018-1169 K C

Keith Adams, Appellant,

against

Selwyn Estick, Respondent.

Alter & Barbaro, Esqs. (Nichole Bishop Castillo of counsel), for appellant. Hanschke, P.C. (Peter Hanschke of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered April 23, 2018. The order, insofar as appealed from as limited by the brief, upon denying a motion by plaintiff to amend the caption, sua sponte, dismissed the complaint with prejudice and left undetermined a cross motion by defendant to vacate a judgment of that court entered May 2, 2002 upon defendant's failure to appear or answer the complaint, and, upon such vacatur, for leave to serve an answer.

ORDERED that, on the court's own motion, the notice of appeal from so much of the order as, sua sponte, dismissed the complaint with prejudice is deemed an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CCA 1702 [c]); and it is further,

ORDERED that, the order, insofar as appealed from, is reversed, without costs, the sua sponte dismissal of the complaint is vacated and the matter is remitted to the Civil Court for a determination of defendant's cross motion.

Plaintiff commenced this action in March 2001, seeking to domesticate a judgment that he had allegedly obtained against defendant in Guyana in 1996. Defendant failed to appear, and a judgment was entered against him on May 2, 2002. In January 2018, plaintiff moved to amend defendant's last name in the caption of the action from "Estick" to "Hestick" and to add "C" as a middle initial. Defendant cross-moved to vacate the default judgment and for leave to serve an answer, contending, among other things, that his last name has always been spelled Hestick, that there has never been a judgment entered against Selwyn Hestick in Guyana for this matter, and that he had never lived at the address listed in plaintiff's affidavit of service in this Civil Court action. The Civil Court denied plaintiff's motion to amend the caption and, sua sponte, dismissed the complaint with prejudice, leaving undetermined defendant's cross motion. As limited by the [*2]brief, plaintiff appeals from so much of the order as sua sponte dismissed the complaint with prejudice.

While no appeal as of right lies from the sua sponte portion of the order (see CCA 1702 [a] [2]; CPLR 2211; Sholes v Meagher, 100 NY2d 333 [2003]), we deem the notice of appeal from that portion of the order to be an application for leave to appeal from that portion of the order and grant plaintiff's application (see CCA 1702 [a] [3]; Sholes v Meagher, 100 NY2d at 335). As defendant's cross motion sought only to vacate the judgment and grant defendant leave to serve an answer, it was error for the Civil Court to sua sponte dismiss the complaint. Consequently, the order, insofar as appealed from, is reversed, the sua sponte dismissal of the complaint is vacated and the matter is remitted for a determination of defendant's cross motion.

ALIOTTA, P.J., WESTON and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 11, 2020