Opinion
331 CA 17–01818
03-23-2018
In the Matter of ASSOCIATED GENERAL CONTRACTORS OF NYS, LLC, Barrett Paving Materials, Inc., BOTHAR Construction, LLC, CCI Companies, Inc., Cold Spring Construction Co., Hanson Aggregates, New York, LLC, Slate Hill Constructors, Inc., Tioga Construction Co., Inc., and Vector Construction Corp., Petitioners-Plaintiffs–Appellants, v. NEW YORK STATE THRUWAY AUTHORITY, Joanne M. Mahoney, in her official capacity as Chair of New York State Thruway Authority Board of Directors, and Bill Finch, in his official capacity as Acting Executive Director of New York State Thruway Authority, Respondents-Defendants–Respondents.
COUCH WHITE, LLP, ALBANY (JENNIFER K. HARVEY OF COUNSEL), FOR PETITIONERS–PLAINTIFFS–APPELLANTS. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ALLYSON B. LEVINE OF COUNSEL), FOR RESPONDENTS–DEFENDANTS–RESPONDENTS.
COUCH WHITE, LLP, ALBANY (JENNIFER K. HARVEY OF COUNSEL), FOR PETITIONERS–PLAINTIFFS–APPELLANTS.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ALLYSON B. LEVINE OF COUNSEL), FOR RESPONDENTS–DEFENDANTS–RESPONDENTS.
PRESENT: CENTRA, J.P., CARNI, NEMOYER, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:In this hybrid CPLR article 78 proceeding and declaratory judgment action, petitioners-plaintiffs (petitioners) appeal from a judgment in which Supreme Court, inter alia, sua sponte dismissed the petition/complaint (petition). We agree with petitioners that the 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" ( Matter ofSheive v. Holley Volunteer Fire Co. , 145 A.D.3d 1584, 1584, 43 N.Y.S.3d 924 [4th Dept. 2016] [internal quotation marks omitted] ). No such extraordinary circumstances are present in this case. Contrary to the court's determination, "a party's lack of standing does not constitute a jurisdictional defect and does not warrant sua sponte dismissal of a complaint" ( HSBC Bank USA, N.A. v. Taher , 104 A.D.3d 815, 817, 962 N.Y.S.2d 301 [2d Dept. 2013] ; see U.S. Bank N.A. v. Emmanuel , 83 A.D.3d 1047, 1048–1049, 921 N.Y.S.2d 320 [2d Dept. 2011] ). We therefore reverse the judgment insofar as appealed from in the exercise of discretion and reinstate the petition (see generally Webb v. Zogaria , 295 A.D.2d 924, 924, 744 N.Y.S.2d 736 [4th Dept. 2002] ).
It is hereby ORDERED that the judgment insofar as appealed from is unanimously reversed in the exercise of discretion without costs and the petition/complaint is reinstated.