Degregorio v. American Manufacturers Mutual Insurance
Opinion of the Court
The defendant Greens at Half Hollow, LLC (hereinafter Greens LLC), obtained approval from the Town of Huntington to construct in Melville a residential community and golf course for people 55 years of age and over, to be known as the Greens at Half Hollow (hereinafter the Greens Community). Greens LLC and its general contractor obtained performance bonds for highway construction from the defendant American Manufacturers Mutual Insurance Company (hereinafter AMMIC) in favor of the Town with respect to the development of the Greens Community. Actions were commenced involving the Town and AMMIC and the Town and Greens LLC with respect to the construction of the Greens Community. These actions were resolved pursuant to a settlement agreement executed July 23, 2008, which provided that Greens LLC would perform certain required remediation work within one year of the date of the settlement agreement.
Subsequent to the expiration of that one-year period, the
AMMIC moved pursuant to CPLR 3211 (a) (1), (3) and (7) to dismiss the complaint insofar as asserted against it (the first and second causes of action). The plaintiffs cross-moved for leave to amend the caption and the complaint to substitute the HOA as the plaintiff in place of the existing plaintiffs. The sponsor defendants did not move to dismiss the third cause of action. However, they did submit an affirmation of their attorney in support of AMMIC’s motion to dismiss the complaint insofar as asserted against it. They also did not oppose the plaintiffs’ cross motion.
In the order appealed from, the Supreme Court, inter alia, granted that branch of AMMIC’s motion which was pursuant to CPLR 3211 (a) (3) to dismiss the complaint insofar as asserted against it and, sua sponte, in effect, directed the dismissal of the third cause of action, which was only asserted against the sponsor defendants. It also denied the plaintiffs’ cross motion for leave to amend the caption and complaint as academic. The plaintiffs appeal. We reverse the order insofar as appealed from.
The argument before the Supreme Court concerned the plaintiffs’ lack of standing with respect to enforcement of the performance bonds issued to the Town. The question of the plaintiffs’ standing with respect to their claims against the sponsor defendants was not addressed either by the parties in their submissions or by the Supreme Court in its order. Moreover, there were no extraordinary circumstances warranting the sua sponte dismissal of the third cause of action (see U.S. Bank, N.A. v Emmanuel, 83 AD3d 1047, 1048-1049 [2011]; Ling Fei Sun v City of New York, 55 AD3d 795, 796 [2008]; Rienzi v Rienzi, 23 AD3d 450 [2005]). Thus, the Supreme Court erred in, sua sponte, in effect, directing the dismissal of the third cause of action against the sponsor defendants.
Further, “[m]otions for leave to amend pleadings should be
Case-law data current through December 31, 2025. Source: CourtListener bulk data.