Smith v Kareema Murphy McDowell

[*1] Smith v Kareema Murphy McDowell 2021 NY Slip Op 50642(U) Decided on July 2, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 2, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHELLE WESTON, J.P., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2019-921 K C

Daryl C. Smith, Appellant,

against

Kareema Murphy McDowell, Respondent.

Daryl C. Smith, appellant pro se. Kareema Murphy McDowell, respondent pro se (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), dated May 10, 2019. The order denied plaintiff's motion to, in effect, vacate so much of an order of that court entered March 6, 2019 as, sua sponte, dismissed the complaint.

ORDERED that the order dated May 10, 2019 is reversed, without costs, and plaintiff's motion to, in effect, vacate so much of the order entered March 6, 2019 as, sua sponte, dismissed the complaint is granted.

In this breach of contract action, the parties entered into a stipulation of settlement in which they agreed to an amount owed, a schedule of payments for that amount, and, in the event of a default in payment, for the entry of a judgment in the amount agreed to, less any payments made. Following an alleged default, a judgment was entered against defendant.

Defendant moved to, among other things, vacate the judgment on the ground that defendant had not defaulted on the stipulation. Defendant did not argue that the stipulation of settlement should be vacated. By order entered March 6, 2019, the Civil Court (Robin S. Garson, J.) granted defendant's motion "in its entirety" and, additionally, sua sponte, dismissed the complaint.

Plaintiff then moved to, in effect, vacate so much of the March 6, 2019 order as, sua sponte, dismissed the complaint. By order dated May 10, 2019, the Civil Court (Robin S. Garson, J.) denied the motion. Plaintiff appeals from that order, arguing that it was error for the Civil Court to sua sponte dismiss the complaint and that the matter should be remitted to the Civil Court for further proceedings. Since defendant's motion sought only to vacate the [*2]judgment, we agree that the complaint should not have been dismissed (see e.g. Adams v Estick, 69 Misc 3d 127[A], 2020 NY Slip Op 51117[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). We note that the propriety of so much of the March 6, 2019 order as vacated the judgment is not the subject of plaintiff's motion or this appeal from the May 10, 2019 order. We further note that the stipulation of settlement remains in effect.

Accordingly, the order dated May 10, 2019 is reversed and plaintiff's motion to, in effect, vacate so much of the order entered March 6, 2019 as, sua sponte, dismissed the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 2, 2021