| Merriwether v Osborne |
| 2009 NY Slip Op 07602 [66 AD3d 851] |
| October 20, 2009 |
| Appellate Division, Second Department |
| Keenan Merriwether, Respondent, v Naubon D. Osborneet al., Appellants. |
—[*1] Richard T. Lau, Jericho, N.Y. (Joseph G. Gallo of counsel), for appellant Sirous H. Nabavi.Alan M. Sanders, LLC, Carle Place, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants separately appeal, aslimited by their briefs, from so much of an order of the Supreme Court, Queens County (Taylor,J.), dated February 26, 2009, as, sua sponte, vacated a prior order of the same court dated May22, 2007, granting the defendants' separate motions for summary judgment dismissing, inter alia,the complaint insofar as asserted against them and, sua sponte, in effect, vacated a judgmententered August 29, 2007, entered upon the order dated May 22, 2007, dismissing the complaint.
Ordered that on the Court's own motion the defendants' notices of appeal from the orderdated February 26, 2009 are treated as applications for leave to appeal, and leave to appeal isgranted (see CPLR 5701 [c]); and it is further,
Ordered that the order dated February 26, 2009, is reversed, on the law, and the order datedMay 22, 2007, and the judgment are reinstated; and it is further,
Ordered that one bill of costs is awarded to the defendants.
By order dated May 22, 2007, the Supreme Court granted, apparently without opposition, thedefendants' separate motions for summary judgment dismissing, inter alia, the complaint insofaras asserted against them, and a judgment dismissing the complaint was entered subsequently.Although the plaintiff was duly served with both the order and the judgment with notice of entry,he neither appealed nor moved to vacate. Nearly two years later, the Supreme Court, sua sponte,without explanation, vacated the order dated May 22, 2007, and, in effect, the judgment, anddenied the defendants' motions for summary judgment.
On appeal, the defendants contend that the Supreme Court exceeded its authority in, sua[*2]sponte, vacating the order and, in effect, the judgment. Weagree.
"A trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order orjudgment" (Adams v Fellingham,52 AD3d 443, 444-445 [2008]; seeArmstrong Trading, Ltd. v MBM Enters., 29 AD3d 835, 836 [2006]; Matter ofOwens v Stuart, 292 AD2d 677, 678-679 [2002]; cf. Liss v Trans Auto Sys., 68NY2d 15, 20 [1986]). Here, the court exceeded its powers by its unexplained sua sponte attemptto reconsider the summary judgment motions anew almost two years after the case wasdismissed by judgment (see Matter of Owens v Stuart, 292 AD2d at 679). Fisher, J.P.,Florio, Angiolillo, Eng and Roman, JJ., concur.