DEPARTMENT OF HOUSING PRESERVATION v. FRANCE (2021)

Order (David J. Bryan, J.), dated July 29, 2019, reversed, without costs, the dismissal vacated, petition reinstated and the matter remanded for further proceedings. Appeal from order (David J. Bryan, J.), dated March 7, 2019 dismissed, without costs, as nonappealable.

Petitioner's motion, denominated as one to reargue, was, in effect, one to vacate the March 7, 2019 order which, sua sponte, dismissed the petition in a Housing Part enforcement proceeding (see Sholes v Meagher, 100 NY2d 333, 335 [2003]; Wilmington Trust, N.A. v Modica, 189 AD3d 1675, 1676 [2020]). Thus, the denial of petitioner's motion is appealable as of right (see 5701[a][3]).

Civil Court's sua sponte dismissal of the petition was procedurally improper and substantively incorrect. The power of a court to dismiss an action or proceeding sua sponte “should be used sparingly and only in extraordinary circumstances” not present on this record (Ray v Chen, 148 AD3d 568, 569 [2017][internal quotation marks omitted]). As to the merits, the court erroneously concluded that the notice of violation served by petitioner was defective. The pertinent Housing Maintenance Code provision to apprise a building owner of an inadequate heat and hot water violation is Administrative Code of City of NY § 27-2115(k)(2) (see Department of Hous. Preserv. & Dev. of City of NY v DeBona, 101 AD2d 875 [1984][citing to the predecessor statute]), and the subject notice of violation served upon respondent satisfied the requirements of that provision.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

All concur.