| Hurd v Hurd |
| 2009 NY Slip Op 07073 [66 AD3d 1492] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| Cynthia B. Hurd, Appellant, v Michael O. Hurd,Respondent. |
—[*1] Wendy Lee Gould, Bath, for defendant-respondent.
Appeal from an order of the Supreme Court, Steuben County (Alex R. Renzi, A.J.), enteredMay 9, 2008. The order dismissed the complaint for failure to state a cause of action.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs and the complaint is reinstated.
Memorandum: Plaintiff appeals from an order in which Supreme Court sua sponte dismissedher complaint for failure to state a cause of action. We note at the outset that, because the orderdid not determine a motion made on notice, it is not appealable as of right (see Sholes vMeagher, 100 NY2d 333, 335 [2003]; Matter of Mary L.R. v Vernon B., 48 AD3d 1088 [2008], lvdenied 10 NY3d 710 [2008]), and plaintiff did not seek leave to appeal (see MaryL.R., 48 AD3d 1088 [2008]). Nevertheless, under the circumstances of this case, we treat thenotice of appeal as an application for leave to appeal, and we grant the application in the interestof justice (see Spada v Sepulveda, 306 AD2d 270, 270 [2003]; Sena v NationwideMut. Fire Ins. Co., 198 AD2d 345, 345-346 [1993]; see generally CPLR 5701 [c]).
With respect to the merits of the appeal, we agree with plaintiff that the court erred indismissing the complaint for failure to state a cause of action in the absence of a request bydefendant for such relief (see Abinanti vPascale, 41 AD3d 395, 396 [2007]; Grimes v Kaplin, 305 AD2d 1024 [2003];Sena, 198 AD2d at 346; see generally McLearn v Cowen & Co., 60 NY2d 686,689 [1983]). Indeed, in doing so, the court "thereby depriv[ed plaintiff] of [her] opportunity tolay bare [her] proof . . . and render[ed] meaningful appellate review of the proprietyof the court's determination on the merits impossible" (Sena, 198 AD2d at 346). "[U]seof the [sua sponte] power of dismissal must be restricted to the most extraordinarycircumstances," and no such extraordinary circumstances are present in this case (MyungChun v North Am. Mtge. Co., 285 AD2d 42, 46 [2001]; see Rienzi v Rienzi, 23 AD3d 450 [2005]; cf. Wehringer vBrannigan, 232 AD2d 206 [1996], lv dismissed 89 NY2d 980 [1997],reconsideration denied 89 NY2d 1087 [1997]). We therefore reverse the order andreinstate the complaint. Present—Smith, J.P., Fahey, Carni, Pine and Gorski, JJ.