Sheive v. Holley Volunteer Fire Co.

Appeal from a judgment (denominated order) of the Supreme Court, Orleans County (James P. Punch, A.J.), entered February 19, 2015 in a CPLR article 78 proceeding and a declaratory judgment action. The judgment denied and dismissed the petition-complaint.

It is hereby ordered that the judgment so appealed from is unanimously reversed on the law without costs and the petition-complaint is reinstated.

Memorandum: In this hybrid CPLR article 78 and declaratory judgment action, petitioner-plaintiff (petitioner) appeals from a judgment denying and dismissing the petition-complaint (petition). We agree with petitioner that Supreme Court improvidently exercised its discretion in sua sponte dismissing the petition. “ ‘[U]se of the [sua sponte] power of dismissal must be restricted to the most extraordinary circumstances,’ ” and no such extraordinary circumstances are present in this case (CitiMortgage, Inc. v Carter, 140 AD3d 1663 , 1663 [2016]; see Oak Hollow Nursing Ctr. v Stumbo, 117 AD3d 698 , 699 [2014]; Hurd v Hurd, 66 AD3d 1492 , 1493 [2009]; cf. Wehringer v Brannigan, 232 AD2d 206 , 207 [1996], appeal dismissed 89 NY2d 980 [1997], reconsideration denied 89 NY2d 1087 [1997]). In sua sponte dismissing the petition, “the court deprived [petitioner] of notice of what was effectively the court’s own motion for summary judgment . . . , thereby depriving [her] of [her] opportunity to lay bare [her] proof . . . and rendering meaningful appellate review of the propriety of the court’s determination on the merits impossible” (Sena v Nationwide Mut. Fire Ins. Co., 198 AD2d 345 , 346 [1993]; see Hurd, 66 AD3d at 1493 ; Abinanti v Pascale, 41 AD3d 395 , 396 [2007]; Jacobs v Mostow, 23 AD3d 623 , 623-624 [2005]). We therefore reverse the judgment and reinstate the petition.

In light of our determination, we do not address petitioner’s remaining contention.

Present—Centra, J.P., Carni, NeMoyer, Curran and Troutman, JJ.