

Matter of Associated Gen. Contrs. of NYS, LLC v New York State Thruway Auth. (2018 NY Slip Op 02075)





Matter of Associated Gen. Contrs. of NYS, LLC v New York State Thruway Auth.


2018 NY Slip Op 02075


Decided on March 23, 2018


Appellate Division, Fourth 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 March 23, 2018
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

PRESENT: CENTRA, J.P., CARNI, NEMOYER, CURRAN, AND WINSLOW, JJ.


331 CA 17-01818

[*1]IN THE MATTER OF ASSOCIATED GENERAL CONTRACTORS OF NYS, LLC, BARRETT PAVING MATERIALS, INC., BOTHAR CONSTRUCTION, LLC, CCI COMPANIES, INC., COLD SPRING CONSTRUCTION CO., HANSON AGGREGATES, NEW YORK, LLC, SLATE HILL CONSTRUCTORS, INC., TIOGA CONSTRUCTION CO., INC., AND VECTOR CONSTRUCTION CORP., PETITIONERS-PLAINTIFFS-APPELLANTS,
vNEW YORK STATE THRUWAY AUTHORITY, JOANNE M. MAHONEY, IN HER OFFICIAL CAPACITY AS CHAIR OF NEW YORK STATE THRUWAY AUTHORITY BOARD OF DIRECTORS, AND BILL FINCH, IN HIS OFFICIAL CAPACITY AS ACTING EXECUTIVE DIRECTOR OF NEW YORK STATE THRUWAY AUTHORITY, RESPONDENTS-DEFENDANTS-RESPONDENTS. 


COUCH WHITE, LLP, ALBANY (JENNIFER K. HARVEY OF COUNSEL), FOR PETITIONERS-PLAINTIFFS-APPELLANTS. 
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ALLYSON B. LEVINE OF COUNSEL), FOR RESPONDENTS-DEFENDANTS-RESPONDENTS. 

	Appeal from a judgment (denominated order) of the Supreme Court, Onondaga County (Gregory R. Gilbert, J.), entered May 15, 2017 in a hybrid CPLR article 78 proceeding and declaratory judgment action. The judgment, insofar as appealed from, sua sponte dismissed the petition/complaint. 
It is hereby ORDERED that the judgment insofar as appealed from is unanimously reversed in the exercise of discretion without costs and the petition/complaint is reinstated.
Memorandum: In this hybrid CPLR article 78 proceeding and declaratory judgment action, petitioners-plaintiffs (petitioners) appeal from a judgment in which Supreme Court, inter alia, sua sponte dismissed the petition/complaint (petition). We agree with petitioners that the court improvidently exercised its discretion in sua sponte dismissing the petition. "[U]se of the [sua sponte] power of dismissal must be restricted to the most extraordinary circumstances" (Matter of Sheive v Holley Volunteer Fire Co., 145 AD3d 1584, 1584 [4th Dept 2016] [internal quotation marks omitted]). No such extraordinary circumstances are present in this case. Contrary to the court's determination, "a party's lack of standing does not constitute a jurisdictional defect and does not warrant sua sponte dismissal of a complaint" (HSBC Bank USA, N.A. v Taher, 104 AD3d 815, 817 [2d Dept 2013]; see U.S. Bank N.A. v Emmanuel, 83 AD3d 1047, 1048-1049 [2d Dept 2011]). We therefore reverse the judgment insofar as appealed from in the exercise of discretion and reinstate the petition (see generally Webb v Zogaria, 295 AD2d 924, 924 [4th Dept 2002]).
Entered: March 23, 2018
Mark W. Bennett
Clerk of the Court


