| Menardy v Gladstone Props., Inc. |
| 2012 NY Slip Op 07966 [100 AD3d 840] |
| November 21, 2012 |
| Appellate Division, Second Department |
| Raymonde Menardy, Appellant, v Gladstone Properties,Inc., et al., Defendants, and Richard Tannenbaum, Respondent. |
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In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Spodek, J.), dated August 24, 2011, which denied her motion,in effect, for leave to enter a second default judgment against the defendants pursuant to CPLR3215 and, sua sponte, amended a prior order of the same court dated November 23, 2009, so as todirect the dismissal of the complaint insofar as asserted against the defendant RichardTannenbaum.
Ordered that on the Court's own motion, the notice of appeal from so much of the order datedAugust 24, 2011, as, sua sponte, amended the order dated November 23, 2009, so as to direct thedismissal of the complaint insofar as asserted against the defendant Richard Tannenbaum isdeemed to be an application for leave to appeal from that portion of the order, and leave to appealis granted (see CPLR 5701 [c]); and it is further,
Ordered that the order dated August 24, 2011, is modified, on the law, (1) by deleting theprovision thereof, sua sponte, amending the order dated November 23, 2009, so as to direct thedismissal of the complaint insofar as asserted against the defendant Richard Tannebaum and (2)by deleting the provision thereof denying those branches of the motion which were, in effect, forleave to enter a second default judgment pursuant to CPLR 3215 against the defendantsGladstone Properties, Inc., and Columbia Realty Co. and substituting therefor provisions grantingthose branches of the motion; as so modified, the order dated August 24, 2011, is affirmed,without costs or disbursements.
The plaintiff was injured in 1995 when a kitchen ceiling collapsed onto her. In 1998, theplaintiff commenced an action against the defendants, and in 2007 a default judgment wasentered in her favor against all of the defendants. In an order dated November 23, 2009, theSupreme Court granted the defendants' motion to vacate the default judgment, and scheduled thematter for a preliminary conference. Subsequently, the plaintiff's counsel and the defendantRichard Tannenbaum appeared in court for a preliminary conference, and stipulated to adiscovery schedule. The defendants Gladstone Properties, Inc., and Columbia Realty Co. did notappear. The plaintiff, alleging that the defendants thereafter failed to comply with discovery, andotherwise defaulted, inter alia, in the obligations imposed upon them in a preliminary conferenceorder dated January 13, 2010, thereafter moved, in effect, for leave to enter a second defaultjudgment against the defendants pursuant to CPLR 3215. In an order dated August 24, 2011, theSupreme Court denied the plaintiff's [*2]motion and, sua sponte,amended the order dated November 23, 2009, so as to direct the dismissal of the complaintinsofar as asserted against Tannenbaum. The plaintiff appeals.
"A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only whenextraordinary circumstances exist to warrant dismissal" (U.S. Bank, N.A. v Emmanuel, 83 AD3d 1047, 1048 [2011]; see Atkins-Payne v Branch, 95 AD3d912 [2012]; Rienzi v Rienzi, 23AD3d 450 [2005]). Here, no such extraordinary circumstances existed so as to warrant thesua sponte dismissal of the complaint insofar as asserted against Tannenbaum. In addition, theSupreme Court's determination to direct the dismissal of the complaint insofar as asserted againstTannenbaum, based upon improper service of process, was, in effect, an improper reversal of thatportion of a prior order dated November 23, 2009, which, upon vacating the defendants' default,implicitly concluded that service was properly effected upon Tannenbaum since the courtdirected the case to proceed to a preliminary conference (see McConnell v Santana, 87 AD3d 618 [2011]). "[A] trial courthas no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment" (Adams v Fellingham, 52 AD3d443, 444 [2008]; see Herpe v Herpe, 225 NY 323 [1919]; Matter of Owens vStuart, 292 AD2d 677, 678-679 [2002]; Reisman v Coleman, 226 AD2d 693 [1996];Osamwonyi v Grigorian, 220 AD2d 400, 401 [1995]). Accordingly, it was error for theSupreme Court to amend its prior order so as to direct the dismissal of the complaint insofar asasserted against Tannenbaum after the time to appeal or move pursuant to CPLR 2221 expired.
The Supreme Court also should have granted that branch of the plaintiff's motion which was,in effect, for leave to enter a second default judgment against the defendants GladstoneProperties, Inc., and Columbia Realty Co. since the record reflects that the plaintiff satisfied thecriteria set forth under CPLR 3215. However, the Supreme Court properly denied that branch ofthe plaintiff's motion which was, in effect, for leave to enter a second default judgment againstTannenbaum. Although the plaintiff demonstrated "proof of the facts constituting the claim andthe amount due," under the particular circumstances of this case, she failed to establish thatTannenbaum was in default of his obligations pursuant to the preliminary conference order(see CPLR 3215 [f]). Angiolillo, J.P., Austin, Sgroi and Miller, JJ., concur.