Opinion
14891 Index No. 101269/19 Case No. 2021–00887
12-21-2021
Melvin DUBINSKY, Plaintiff–Appellant, v. Rhoda M. LEVINE, Defendant–Respondent.
Melvin Dubinsky, New York, appellant pro se.
Melvin Dubinsky, New York, appellant pro se.
Renwick, J.P., Oing, Singh, Scarpulla, Pitt, JJ.
Order, Supreme Court, New York County (Barbara Jaffe, J), entered February 28, 2020, which denied plaintiff's motion for a default judgment and sua sponte dismissed the complaint, unanimously affirmed, without costs.
Supreme Court properly denied plaintiff's motion for a default judgment. Plaintiff failed to show that the doorman at defendant's apartment building refused him access to defendant's residence, and as a result, plaintiff's attempt at substituted service by leaving the papers with the doorman at defendant's building was ineffective (cf. Al Fayed v. Barak, 39 A.D.3d 371, 372, 833 N.Y.S.2d 500 [1st Dept. 2007] [service left with a doorman, followed by a mailing, valid where access to the building is prohibited]; Rosenberg v. Haddad, 208 A.D.2d 468, 469, 617 N.Y.S.2d 330 [1st Dept. 1994] [same]).
Supreme Court also properly dismissed plaintiff's complaint sua sponte. Although a sua sponte order is not appealable as of right, in the interest of judicial economy, we deem plaintiff's notice of appeal as a motion for leave to appeal, and, upon so deeming the notice of appeal, grant the motion ( CPLR 5701[c] ; see Hall v. Louis, 184 A.D.3d 437, 438, 125 N.Y.S.3d 683 [1st Dept. 2020] ).
As to the merits, dismissal of plaintiff's complaint was appropriate, since it failed to assert any viable cause of action (see Aprea v. New York State Bd. of Elections, 103 A.D.3d 1059, 1061, 960 N.Y.S.2d 255 [3d Dept. 2013] ). The parties had a retainer agreement; accordingly, plaintiff's causes of action for account stated and unjust enrichment are duplicative of the breach of contract action (see Remora Capital v. S.A. Dukan, 175 A.D.3d 1219, 1221, 110 N.Y.S.3d 14 [1st Dept. 2019] ). Further, the cause of action for breach of contract is moot, as defendant eventually paid plaintiff the amount he sought under the agreement (see Engstrom v. Kinney System, Inc., 241 A.D.2d 420, 424, 661 N.Y.S.2d 610 [1st Dept. 1997], lv denied 91 N.Y.2d 801, 666 N.Y.S.2d 563, 689 N.E.2d 533 [1997] ). Plaintiff also fails to state a cause of action for intentional infliction of emotional distress, as defendant's alleged conduct in stopping payment on a check and humiliating plaintiff at a meeting was not "extreme and outrageous" (see A. Resnick Textile Co. v. Daisy Group, 284 A.D.2d 101, 101, 726 N.Y.S.2d 82 [1st Dept. 2001] ).
We have considered plaintiff's remaining contentions and find them unavailing.