Campbell v. City of New York , 761 N.Y.S.2d 863 ( 2003 )

—In an action, inter alia, to recover damages for battery, the plaintiff appeals from an order of the Supreme Court, Kings County (Barasch, J.), dated September 5, 2002, which, sua sponte, dismissed the complaint.

Ordered that on the Court’s own motion, the notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see CPLR 5701 [c]); and it is farther,

Ordered that the order is reversed, on the law, the complaint is reinstated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings before a different justice; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

Under the circumstances of this case, the Supreme Court erred in, sua sponte, dismissing the plaintiffs complaint. The record does not support its conclusion that the plaintiff was not ready to proceed to trial. Altman, J.P., Krausman, Goldstein, H. Miller and Crane, JJ., concur.