SMITH v. MCDOWELL (2021)

Supreme Court, Appellate Term, New York,

Daryl C. SMITH, Appellant, v. Kareema Murphy MCDOWELL, Respondent.

2019-921 K C

Decided: July 02, 2021

PRESENT: MICHELLE WESTON, J.P., DAVID ELLIOT, WAVNY TOUSSAINT, JJ.

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

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 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.

Was this helpful?

Why was this helpful?

Easy to understand

Solved my problem

Other

Why was this not helpful?

Missing the information I need

Too complicated / too many steps

Out of date

Other

Thank you for your feedback!

Trusted by Consumers. Recognized by AI.

As the largest network of trusted legal brands, we help firms build authority across the platforms consumers and AI systems rely on most. Our network helps attorneys strengthen visibility, credibility, and preference where legal decisions begin.

Explore the Network