         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
13
CA 09-02486
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, GREEN, AND GORSKI, JJ.


BRIAN RAULS, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DIRECTV, INC., DEFENDANT-APPELLANT.


LEMERY GREISLER LLC, SARATOGA SPRINGS (ROBERT A. LIPPMAN OF COUNSEL),
FOR DEFENDANT-APPELLANT.

GROSS, SHUMAN, BRIZDLE & GILFILLAN, P.C., BUFFALO (HARRY J. FORREST OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Erie County (Frank A. Sedita, Jr., J.), entered November 9,
2009 in a personal injury action. The order and judgment awarded
plaintiff money damages for defendant’s violation of Labor Law § 240
(1).

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously reversed on the law without costs and the motion is
denied.

     Memorandum: Defendant contends on appeal that Supreme Court
erred in sua sponte converting plaintiff’s motion for leave to “renew”
his prior motion for a default judgment to a motion for summary
judgment, granting summary judgment to plaintiff, and awarding damages
on plaintiff’s Labor Law § 240 (1) claim. We agree. We note at the
outset that defendant’s notice of appeal recites that the appeal is
taken from Supreme Court’s “Decision and Order” entered November 9,
2009 when in fact the record contains a document entitled an “order
and judgment” that was entered on that date. We nevertheless exercise
our discretion to treat the notice of appeal as valid and deem the
appeal as taken from the order and judgment (see CPLR 5520 [c]). With
respect to the merits, we note that there is no procedural mechanism
in the CPLR authorizing a court to convert a motion for leave to renew
a motion for a default judgment to a motion for summary judgment. In
any event, it is well established that a “court may not, on its own
initiative, convert a motion for [relief other than for summary
judgment] into one for summary judgment without giving adequate notice
to the parties and affording the parties an opportunity to lay bare
their proof” (Clark v New York State Off. of Parks, Recreation &
Historic Preserv., 288 AD2d 934, 935). Here, it is undisputed that
neither party moved for summary judgment and that the court at oral
argument of plaintiff’s motion for leave to renew provided no notice
                                 -2-                              13
                                                           CA 09-02486

to the parties before sua sponte converting the motion   to a motion for
summary judgment and then granting summary judgment to   plaintiff. The
court thus “deprived [defendant] of the opportunity to   make an
appropriate record” (Matter of Wargo v Amica Mut. Ins.   Co., 6 AD3d
541, 543).

     We cannot agree with plaintiff that the court properly converted
the motion on the ground that the parties were “ ‘deliberately
charting a summary judgment course’ ” (Mihlovan v Grozavu, 72 NY2d
506, 508; see Clark, 288 AD2d at 935). After this Court reversed the
prior order of Supreme Court insofar as appealed from by granting in
its entirety defendant’s motion to vacate the default judgment entered
against it (Rauls v DirecTV, Inc., 60 AD3d 1337), defendant interposed
an answer, served discovery demands, and noticed depositions.
Depositions of plaintiff and a representative of defendant had been
scheduled and were adjourned at the request of plaintiff’s counsel.
Shortly thereafter, plaintiff moved for leave to renew the prior
motion seeking a default judgment and, notably, in opposition to that
motion, defendant expressly contended that “[t]he plaintiff must
proceed forward with discovery and move for summary judgment at the
appropriate time.”

     Plaintiff contends in the alternative that we should modify the
order and judgment on appeal by granting his motion for leave to renew
and reinstating the default judgment. Plaintiff was not entitled to
take a cross appeal, having obtained the full relief sought, “even
where [the plaintiff] disagrees with the particular findings,
rationale or the opinion supporting the judgment or order below in his
favor” (Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d
539, 545). Nevertheless, plaintiff may assert an alternative ground
for affirmance where, as here, the defendant would prevail on a
reversal on appeal (see generally id. at 545-546; Harnischfeger v
Moore, 56 AD3d 1131). We conclude, however, that plaintiff’s
alternative contention lacks merit. A plaintiff may seek a default
judgment only “[w]hen a defendant has failed to appear, plead or
proceed to trial of an action reached and called for trial, or when
the court orders a dismissal for any other neglect to proceed” (CPLR
3215 [a]). Here, once defendant interposed its answer pursuant to
this Court’s decision on defendant’s prior appeal (Rauls, 60 AD3d at
1338), defendant was no longer in default and there was thus no
procedural basis for seeking leave to “renew” the motion for a default
judgment entered upon defendant’s earlier failure to answer the
complaint in a timely manner.

     In light of our determination, we do not address the remaining
contentions of the parties.




Entered:   February 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
