Atkins-Payne v Branch, 2012 NY Slip Op 03577 (2nd Dept., 2012)
The plaintiff moved pursuant to CPLR 3215 for leave to enter a default judgment against the defendants upon their failure to appear or answer the complaint. The Supreme Court denied the plaintiff's motion on the ground that she had failed to effect proper service on any of the defendants. In addition, the Supreme Court, sua sponte, in effect, directed the dismissal, with prejudice, as time-barred, of all causes of action to recover damages for fraud, based upon the dates of certain transactions as alleged in the plaintiff's papers. None of the defendants had moved to dismiss those causes of action as time-barred, and the plaintiff was not given the opportunity to submit argument or evidence that those causes of action were timely pursuant to CPLR 213(8). The plaintiff appeals from so much of the order as sua sponte, in effect, directed the dismissal, with prejudice, of the causes of action to recover damages for fraud. We reverse the order insofar as appealed from.
"A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal" (U.S. Bank, N.A. v Emmanuel, 83 AD3d 1047, 1048; see Rienzi v Rienzi, 23 AD3d 450). Here, the Supreme Court was not presented with any extraordinary circumstances warranting dismissal of the causes of action to recover damages for fraud. Accordingly, the Supreme Court erred in sua sponte, in effect, directing the dismissal, with prejudice, of those causes of action (see During v City of New Rochelle, 55 AD3d 533, 534).
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