Case Information
*1 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department 1195
CA 15-01942
PRESENT: CENTRA, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ. IN THE MATTER OF LAUREN L. SHEIVE,
PETITIONER-PLAINTIFF-APPELLANT,
V MEMORANDUM AND ORDER HOLLEY VOLUNTEER FIRE COMPANY,
RESPONDENT-DEFENDANT-RESPONDENT.
WINSTON & STRAWN LLP, NEW YORK CITY (ANUP K. MISRA OF COUNSEL), FOR PETITIONER-PLAINTIFF-APPELLANT.
Appeal from a judgment (denominated order) of the Supreme Court, Orleans County (James P. Punch, A.J.), entered February 19, 2015 in a CPLR article 78 proceeding and a declaratory judgment action. The judgment denied and dismissed the petition-complaint.
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 AD2d 206, 207, appeal dismissed 89 NY2d 980, reconsideration denied 89 NY2d 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 AD2d 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
-2- 1195
CA 15-01942 remaining contention.
Entered: December 23, 2016 Frances E. Cafarell
Clerk of the Court