

Bono v DuBois (2014 NY Slip Op 07116)





Bono v DuBois


2014 NY Slip Op 07116


Decided on October 22, 2014


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 October 22, 2014
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

WILLIAM F. MASTRO, J.P.
CHERYL E. CHAMBERS
JEFFREY A. COHEN
BETSY BARROS, JJ.


2014-01763
 (Index No. 8490/11)

[*1]Charles Bono, appellant, 
vCarol DuBois, respondent.


Reiter & Zipern, Suffern, N.Y. (Arnold E. Reiter of counsel), for appellant.

DECISION & ORDER
In an action to recover on a promissory note, the plaintiff appeals from an order of the Supreme Court, Orange County (Bartlett, J.), dated October 30, 2013, which denied his unopposed renewed motion pursuant to CPLR 3215(a) for leave to enter a judgment on the issue of liability against the defendant upon her failure to appear or answer, and, sua sponte, dismissed the complaint pursuant to CPLR 3215(c).
ORDERED that on the Court's own motion, the notice of appeal from so much of the order as, sua sponte, dismissed the complaint is deemed 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 modified, on the law, by deleting the provision thereof which, sua sponte, dismissed the complaint; as so modified, the order is affirmed, without costs or disbursements.
There is no proof in the record that the plaintiff submitted an affidavit of service by mail of an additional copy of the summons upon the defendant's residence or last known residence in compliance with the additional service requirement of CPLR 3215(g)(3) (see Bunch v Dollar Budget, Inc., 12 AD3d 391; Schilling v Maren Enters., 302 AD2d 375, 376; Ocuto Blacktop & Paving Co. v Trataros Constr., 277 AD2d 919, 920; Rafa Enters. v Pigand Mgt. Corp., 184 AD2d 329). Accordingly, the plaintiff's renewed motion for leave to enter a judgment on the issue of liability against the defendant was properly denied.
However, since the plaintiff's initial motion for leave to enter a judgment against the defendant upon her failure to appear or answer was made within one year of the default, and the plaintiff did not abandon the action, there was no basis for the Supreme Court to, sua sponte, dismiss the complaint pursuant to CPLR 3215(c) (see U.S. Bank N.A. v Poku, 118 AD3d 980; Mortgage Elec. Registration Sys., Inc. v Smith, 111 AD3d 804, 806; Jones v Fuentes, 103 AD3d 853; Brown v Rosedale Nurseries, 259 AD2d 256, 257). Accordingly, the Supreme Court erred in, sua sponte, dismissing the complaint.
MASTRO, J.P., CHAMBERS, COHEN and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


