Maynard v. Maynard ( 2016 )

Maynard v Maynard (2016 NY Slip Op 02784)

Maynard v Maynard

2016 NY Slip Op 02784

Decided on April 13, 2016

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 13, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
L. PRISCILLA HALL, J.P.
JEFFREY A. COHEN
HECTOR D. LASALLE
FRANCESCA E. CONNOLLY, JJ.

2014-00915
2014-07664
(Index No. 15130/11)

[*1]Barbara Maynard, appellant,

v

Russell Maynard, respondent.

Daniel D. Molinoff, Larchmont, NY, for appellant.

DECISION & ORDER

Appeals from (1) a judgment of the Supreme Court, Queens County (Pam Jackman Brown, J.), entered September 19, 2013, and (2) an order of the same court dated June 18, 2014. The judgment dismissed the action, inter alia, for want of prosecution and for failure to timely file a complaint. The order denied the plaintiff's motion, in effect, to vacate the judgment.

ORDERED that the judgment is reversed, on the facts and in the exercise of discretion, without costs or disbursements, the action is reinstated, and the order is vacated; and it is further,

ORDERED that the appeal from the order is dismissed as academic, without costs or disbursements, in light of our determination on the appeal from the judgment.

The Supreme Court improvidently exercised its discretion in sua sponte dismissing the action. A court's power to dismiss an action sua sponte is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal (see Rienzi v Rienzi, 23 AD3d 450, 450). Here, the judgment entered September 19, 2013, cites, among other things, the delay in prosecuting the case and the plaintiff's failure to timely file a verified complaint within 20 days of the defendant's demand. However, under the circumstances presented here, sua sponte dismissal was not authorized on either ground (see CPLR 3012[b]; 3216[b]). Nor did the additional grounds cited in the judgment warrant such an extreme sanction.

In light of our determination, the appeal from an order dated June 18, 2014, which denied the plaintiff's motion, in effect, to vacate the judgment, has been rendered academic.

HALL, J.P., COHEN, LASALLE and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court