Guclu v Law Offs. of Jed David Philwin (2009 NY Slip Op 52611(U))

Guclu v Law Offs. of Jed David Philwin

2009 NY Slip Op 52611(U) [26 Misc 3d 127(A)]

Decided on December 18, 2009

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Mehmet Guclu, DURSUN GUCLU and FATMA GUCLU, Appellants,

against

Law Offices of Jed David Philwin, JED DAVID PHILWIN, SAM SALAMON, EARL S. DAVID and ABDUL BASSIT, Respondents.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Marie Jimenez, J.), entered April 11, 2008. The order, insofar as appealed from as limited by the brief, upon a motion to vacate a default judgment and restore the matter to the calendar, sua sponte dismissed the action against all the defendants.

ORDERED that, on the court's own motion, plaintiffs' notice of appeal as to the portion of the order that, sua sponte, dismissed the complaint against all the defendants is treated as an application for leave to appeal from said portion of the order, and leave to appeal is granted (see CCA 1702 [c]); and it is further,

ORDERED that the order, insofar as appealed from, is reversed without costs, the provision which, sua sponte, dismissed the complaint against all the defendants is stricken, the complaint is reinstated and the matter is remitted to the Civil Court for all further proceedings.

Plaintiffs commenced this action against their former attorneys, alleging that defendants had failed to provide proper services. After an inquest, a judgment was entered against all of the defendants. Thereafter, upon a motion to vacate the default judgment and restore the matter to the calendar, the Civil Court vacated the default and, sua sponte, dismissed the complaint against all of the defendants with prejudice on the ground that the action was time-barred. We find that the court erred in sua sponte dismissing the complaint. Plaintiffs were denied a meaningful opportunity to contest the issue of whether the complaint was time-barred, and defendants had not met their initial burden of demonstrating that the action was untimely (see Town of [*2]Hempstead v Lizza Indus., 293 AD2d 739 [2002]; Fergusson v Dumbacher, 21 Misc 3d 145[A], 2008 NY Slip Op 52547[U] [App Term, 1st Dept 2008]). Accordingly, the order, insofar as appealed from, is reversed, the provision which, sua sponte, dismissed the
complaint against all the defendants is stricken, the complaint is reinstated and the matter is remitted to the Civil Court for all further proceedings.