From Casetext: Smarter Legal Research

Edith Bolte Kutz Trust v. Atlantic Coast Construction, LLC

Appellate Division of the Supreme Court of New York, Second Department
Aug 1, 2006
32 A.D.3d 377 (N.Y. App. Div. 2006)

Opinion

2006-01638.

August 1, 2006.

In an action to recover on a mortgage note brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the plaintiff appeals from an order of the Supreme Court, Westchester County (Nastasi, J.), dated February 8, 2006, which denied the motion and, sua sponte, dismissed the action.

Joseph J. Haspel, PLLC, Goshen, N.Y., for appellant.

Before: Florio, J.P., Santucci, Mastro, Rivera and Covello, JJ.


Ordered that on the Court's own motion, the notice of appeal from so much of the order as, sua sponte, dismissed the action, is treated as an application for leave to appeal from that portion of the order, and leave to appeal is granted ( see CPLR 5701 [c]); and it is further,

Ordered that the order is reversed, on the law, with costs, the action is reinstated, and the matter is remitted to the Supreme Court, Westchester County, for a determination on the merits of the motion.

Contrary to the Supreme Court's determination, the plaintiff established that it properly commenced this action by submitting a copy of the summons with the notice of motion, and supporting papers, date-stamped by the Westchester County Clerk on September 29, 2005 ( see CPLR 304, 3213; Matter of Progressive Northeastern Ins. Co. v Frenkel, 8 AD3d 390, 391). The plaintiff also submitted a copy of the request for judicial intervention, and receipt for the filing fee, both date-stamped by the Westchester County Clerk on September 29, 2005. The filing of papers with the Westchester County Clerk is tantamount to furnishing papers to the court pursuant to CPLR 2214 (c) ( cf. hue v Daniels, 284 AD2d 508). Accordingly, the Supreme Court's sua sponte dismissal of this action was improper. Since the Supreme Court did not consider the merits of the motion, the matter must be remitted to the Supreme Court, Westchester County, for such a determination.


Summaries of

Edith Bolte Kutz Trust v. Atlantic Coast Construction, LLC

Appellate Division of the Supreme Court of New York, Second Department
Aug 1, 2006
32 A.D.3d 377 (N.Y. App. Div. 2006)
Case details for

Edith Bolte Kutz Trust v. Atlantic Coast Construction, LLC

Case Details

Full title:EDITH BOLTE KUTZ TRUST, Appellant, v. ATLANTIC COAST CONSTRUCTION, LLC…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Aug 1, 2006

Citations

32 A.D.3d 377 (N.Y. App. Div. 2006)
2006 N.Y. Slip Op. 6064
820 N.Y.S.2d 100

Citing Cases

Island Assoc. Real Estate v. Eshaghpour

In the event payment is not received upon the above mentioned terms, this document shall be converted to a…

Oakgrove v. Genesee Valley

We thus conclude that the court erred in determining the motion and cross motion on that ground. Because the…