Louis Dossous, appellant, v. Corporate Owners Bayridge Nissan, Inc., respondent.

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Supreme Court, Appellate Division, Second Department, New York.

Louis Dossous, appellant, v. Corporate Owners Bayridge Nissan, Inc., respondent.

2011–05391 (Index No. 425/11)

Decided: December 19, 2012

PETER B. SKELOS, J.P. RUTH C. BALKIN THOMAS A. DICKERSON SYLVIA HINDS–RADIX, JJ. Louis Dossous, Westbury, N.Y., appellant pro se. McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York, N.Y. (Brian J. Carey of counsel), for respondent.

Submitted—November 5, 2012

DECISION & ORDER

In an action to recover damages for breach of contract, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated May 13, 2011, as, upon the denial of his motion to stay the enforcement of a prior order of the same court, sua sponte, directed the dismissal of the complaint.

ORDERED that on the Court's own motion, the notice of appeal is deemed to be an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c] );  and it is further,

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for further proceedings on the complaint.

The Supreme Court improvidently exercised its discretion when it, sua sponte, directed the dismissal of the complaint.  “A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” (U.S. Bank, N.A. v. Emmanuel, 83 AD3d 1047, 1048;  see Atkins–Payne v. Branch, 95 AD3d 912;  Bank of Am., N.A. v. Bah, 95 AD3d 1150, 1151).   Here, there were no extraordinary circumstances warranting the sua sponte dismissal of the complaint.   There was no motion or cross motion by the defendant pending before the Supreme Court, and the defendant's opposition to the plaintiff's motion sought only the denial of that motion.   Thus, “[a] serious aspect of due process [was] overlooked by the IAS court,” in that the plaintiff was deprived of notice and the opportunity to respond to a motion to dismiss the complaint (Myung Chun v. North Am. Mtge. Co., 285 A.D.2d 42, 45;  see NYCTL 2008–A Trust v. Estate of Locksley Holas, 93 AD3d 650, 651;  Ling Fei Sun v. City of New York, 55 AD3d 795, 796).   This was improper (see Mihlovan v. Grozavu, 72 N.Y.2d 506, 508;  Ling Fei Sun v. City of New York, 55 AD3d at 796;  Myung Chun v. North Am. Mtge. Co., 285 A.D.2d at 45).

In light of our determination, the plaintiff's remaining contentions need not be addressed.   We note that the plaintiff's undecided motion to stay a prior order of the same court is now academic.

SKELOS, J.P., BALKIN, DICKERSON and HINDS–RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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