        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1195
CA 15-01942
PRESENT: CENTRA, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.


IN THE MATTER OF LAUREN L. SHEIVE,
PETITIONER-PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

HOLLEY VOLUNTEER FIRE COMPANY,
RESPONDENT-DEFENDANT-RESPONDENT.


WINSTON & STRAWN LLP, NEW YORK CITY (ANUP K. MISRA OF COUNSEL), FOR
PETITIONER-PLAINTIFF-APPELLANT.


     Appeal from a judgment (denominated order) of the Supreme Court,
Orleans County (James P. Punch, A.J.), entered February 19, 2015 in a
CPLR article 78 proceeding and a declaratory judgment action. The
judgment denied and dismissed the petition-complaint.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs and the petition-
complaint is reinstated.

     Memorandum: In this hybrid CPLR article 78 and declaratory
judgment action, petitioner-plaintiff (petitioner) appeals from a
judgment denying and dismissing the petition-complaint (petition). We
agree with petitioner that Supreme 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,’ ” and no such extraordinary
circumstances are present in this case (CitiMortgage, Inc. v Carter,
140 AD3d 1663, 1663; see Oak Hollow Nursing Ctr. v Stumbo, 117 AD3d
698, 699; Hurd v Hurd, 66 AD3d 1492, 1493; cf. Wehringer v Brannigan,
232 AD2d 206, 207, appeal dismissed 89 NY2d 980, reconsideration
denied 89 NY2d 1087). In sua sponte dismissing the petition, “the
court deprived [petitioner] of notice of what was effectively the
court’s own motion for summary judgment . . . , thereby depriving
[her] of [her] opportunity to lay bare [her] proof . . . and rendering
meaningful appellate review of the propriety of the court’s
determination on the merits impossible” (Sena v Nationwide Mut. Fire
Ins. Co., 198 AD2d 345, 346; see Hurd, 66 AD3d at 1493; Abinanti v
Pascale, 41 AD3d 395, 396; Jacobs v Mostow, 23 AD3d 623, 623-624). We
therefore reverse the judgment and reinstate the petition.

     In light of our determination, we do not address petitioner’s
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                                              CA 15-01942

remaining contention.




Entered:   December 23, 2016         Frances E. Cafarell
                                     Clerk of the Court
