

New Globaltex Co., Ltd. v Zhe Lin (2019 NY Slip Op 04456)





New Globaltex Co., Ltd. v Zhe Lin


2019 NY Slip Op 04456


Decided on June 6, 2019


Appellate Division, First 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 June 6, 2019

Sweeny, J.P., Gische, Webber, Oing, Moulton, JJ.


9536 152361/13

[*1]New Globaltex Co., Ltd., Plaintiff-Appellant,
vZhe Lin, Defendant-Respondent, Imperial International Trading Inc., Defendant.


Soong & Liu, New York (Arthur J. Soong of counsel), for appellant.
Zane and Rudofsky, New York (Eric S. Horowitz of counsel), for respondent.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered July 23, 2018, which, sua sponte, dismissed the complaint, unanimously reversed, on the law, without costs, to reinstate the complaint and the default judgment, and the matter is remanded to the motion court to consider the merits of defendant's motion to vacate the default judgment.
An order issued sua sponte is not appealable as of right (see Sholes v Meagher, 100 NY2d 333, 335 [2003]). However, given the nature of the motion court's sua sponte relief in dismissing the complaint pursuant to CPLR 3215(c), we deem the notice of appeal to be a motion for leave to appeal, and grant such leave (see Ray v Chen, 148 AD3d 568 [1st Dept 2017]; CPLR 5701[c]).
The record is clear that plaintiff had moved for a default judgment within one year, and thus, the motion court's sua sponte vacature of the judgment and dismissal of the complaint as untimely was in error (see Brown v Rosedale Nurseries, 259 AD2d 256, 257 [1st Dept 1999]; US Bank N.A. v Dorestant, 131 AD3d 467, 469 [2d Dept 2015]). In view of this decision, the merits of defendant's motion to vacate the default judgment are no longer moot and it is remanded back to the trial court for consideration on the merits.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 6, 2019
CLERK


