| Ling Fei Sun v City of New York |
| 2008 NY Slip Op 08098 [55 AD3d 795] |
| October 21, 2008 |
| Appellate Division, Second Department |
| Ling Fei Sun, Appellant, v City of New York et al.,Respondents. |
—[*1] Heidell, Pittoni, Murphy & Bach, LLP, New York, N.Y. (Daniel S. Ratner of counsel), forrespondents.
In an action, inter alia, to recover damages for false arrest, the plaintiff appeals from an order of theSupreme Court, Queens County (Hart, J.), dated June 26, 2007, which, in effect, sua sponte,dismissed the action.
Ordered that on the Court's own motion, the notice of appeal from the order is treated as anapplication for leave to appeal, and leave to appeal is granted (see CPLR 5701 [c]); and it isfurther,
Ordered that the order is reversed, on the law, with costs, the action is reinstated, and the matter isremitted to the Supreme Court, Queens County, for further proceedings before a different Justice.
The Supreme Court abused its discretion when it, in effect, sua sponte, dismissed the plaintiff'saction. "The power of the court to dismiss an action, sua sponte, is to be used sparingly" (Rienzi v Rienzi, 23 AD3d 450, 450[2005], citing Myung Chun v North Am. Mtge. Co., 285 AD2d 42 [2001]). Here, dismissalwas improper because no extraordinary circumstances were present to warrant that action (see Rienzi v Rienzi, 23 AD3d 450[2005]). In effect, the Supreme Court awarded the defendants summary judgment based uponevidence dehors the record and without notice to the plaintiff. This was improper (see Mihlovan vGrozavu, 72 NY2d 506, 508 [1988]; Myung Chun v North Am. Mtge. Co., 285 AD2d42, 45 [2001]).[*2]
Contrary to the defendants' contention, the plaintiff'scommencement of the action by filing a notice of petition and petition along with a verified complaintwas not jurisdictionally defective (see CPLR 304; Matter of Abramov v Board ofAssessors, Town of Hurley, 257 AD2d 958 [1999]). The plaintiff's confusion between the form ofan action and the form of a special proceeding is not a ground to dismiss the action (see CPLR103 [c]; Boryszewski v Brydges, 37 NY2d 361 [1975]).
In light of our determination, the plaintiff's remaining contention need not be addressed. Lifson, J.P.,Ritter, Miller and Balkin, JJ., concur.