| Atkins-Payne v Branch |
| 2012 NY Slip Op 03577 [95 AD3d 912] |
| May 8, 2012 |
| Appellate Division, Second Department |
| Patricia Atkins-Payne, Appellant, v Tyrone Branch et al.,Respondents. |
—[*1] Stagg, Terenzi, Confusione & Wabnick, LLP, Garden City, N.Y. (Thomas E. Stagg ofcounsel), for respondent Chase Bank.
In an action, inter alia, to recover damages for fraud, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Kings County (Spodek, J.), dated April29, 2011, as, upon denying her motion pursuant to CPLR 3215 for leave to enter a defaultjudgment against the defendants upon their failure to appear or answer the complaint, sua sponte,in effect, directed the dismissal, with prejudice, as time-barred, of all causes of action to recoverdamages for fraud.
Ordered that on the Court's own motion, the notice of appeal from so much of the order datedApril 29, 2011, as, sua sponte, in effect, directed the dismissal, with prejudice, as time-barred, ofall causes of action to recover damages for fraud is deemed an application for leave to appealfrom that portion of the order, and leave to appeal is granted (see CPLR 5701 [c]); and itis further,
Ordered that the order dated April 29, 2011, is reversed insofar as appealed from, on the law,with costs.
The plaintiff moved pursuant to CPLR 3215 for leave to enter a default judgment against thedefendants upon their failure to appear or answer the complaint. The Supreme Court denied theplaintiff's motion on the ground that she had failed to effect proper service on any of thedefendants. In addition, the Supreme Court, sua sponte, in effect, directed the dismissal, withprejudice, as time-barred, of all causes of action to recover damages for fraud, based upon thedates of certain transactions as alleged in the plaintiff's papers. None of the defendants hadmoved to dismiss those causes of action as time-barred, and the plaintiff was not given theopportunity to submit argument or evidence that those causes of action were timely pursuant toCPLR 213 (8). The plaintiff appeals from so much of the order as sua sponte, in effect, directedthe dismissal, with prejudice, of the causes of action to recover damages for fraud. We reversethe order insofar as appealed from.
"A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only [*2]when extraordinary circumstances exist to warrant dismissal" (U.S. Bank, N.A. v Emmanuel, 83AD3d 1047, 1048 [2011]; seeRienzi v Rienzi, 23 AD3d 450 [2005]). Here, the Supreme Court was not presented withany extraordinary circumstances warranting dismissal of the causes of action to recover damagesfor fraud. Accordingly, the Supreme Court erred in sua sponte, in effect, directing the dismissal,with prejudice, of those causes of action (see During v City of New Rochelle, N.Y., 55 AD3d 533, 534[2008]). Angiolillo, J.P., Dickerson, Leventhal and Miller, JJ., concur.