IN RE: LAUREN L. SHEIVE (2016)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs and the petition-complaint is reinstated.

Memorandum:  In this hybrid CPLR article 78 and declaratory judgment action, petitioner-plaintiff (petitioner) appeals from a judgment denying and dismissing the petition-complaint (petition).  We agree with petitioner that Supreme Court improvidently exercised its discretion in sua sponte dismissing the petition.  “ ‘[U]se of the [sua sponte] power of dismissal must be restricted to the most extraordinary circumstances,’ “ and no such extraordinary circumstances are present in this case (CitiMortgage, Inc. v. Carter, 140 AD3d 1663, 1663;  see Oak Hollow Nursing Ctr. v. Stumbo, 117 AD3d 698, 699;  Hurd v. Hurd, 66 AD3d 1492, 1493;  cf.  Wehringer v. Brannigan, 232 A.D.2d 206, 207, appeal dismissed 89 N.Y.2d 980, reconsideration denied 89 N.Y.2d 1087).  In sua sponte dismissing the petition, “the court deprived [petitioner] of notice of what was effectively the court's own motion for summary judgment ․, thereby depriving [her] of [her] opportunity to lay bare [her] proof ․ and rendering meaningful appellate review of the propriety of the court's determination on the merits impossible” (Sena v Nationwide Mut. Fire Ins. Co., 198 A.D.2d 345, 346;  see Hurd, 66 AD3d at 1493;  Abinanti v. Pascale, 41 AD3d 395, 396;  Jacobs v. Mostow, 23 AD3d 623, 623–624).  We therefore reverse the judgment and reinstate the petition.

In light of our determination, we do not address petitioner's remaining contention.

Frances E. Cafarell

Clerk of the Court