Yi Jing Tan v. Liang

Summary

The Appellate Division, Second Department, reversed a sua sponte dismissal of the plaintiffs' complaint under 22 NYCRR 202.27. The court held that dismissal was an improvident exercise of discretion because the Supreme Court had adjourned the inquest to a date when plaintiffs' counsel was unavailable, and remitted the matter for an inquest.

Holdings

1. A sua sponte order is appealable when leave to appeal is granted; the court therefore deemed the notice of appeal an application for leave and granted leave.
2. Issues concerning the plaintiffs' lack of readiness to proceed and whether that lack of readiness was excusable were reviewable on appeal because those issues were the subject of contest below.
3. Although 22 NYCRR 202.27(b) gives a court discretion to dismiss a complaint when a plaintiff fails to appear or is not ready to proceed, the Supreme Court improvidently exercised that discretion by dismissing this complaint under the circumstances.

Questions Presented

1. Whether the plaintiffs' notice of appeal from a sua sponte dismissal order could be treated as an application for leave to appeal.
2. Whether the plaintiffs could obtain appellate review of their lack of readiness to proceed and whether that lack of readiness was excusable despite the order having been entered upon their purported default.
3. Whether the Supreme Court improvidently exercised its discretion by dismissing the complaint under 22 NYCRR 202.27(b) after adjourning the inquest to a date when plaintiffs' counsel was unavailable.

Disposition

reversed_and_remanded