Opinion
2012-02-21
James L. MELCHER, Appellant, v. APOLLO MEDICAL FUND MANAGEMENT L.L.C. et al., Respondents.
Patterson Belknap Webb & Tyler LLP, New York City (Stephen P. Younger of counsel), for appellant. Windels Marx Lane & Mittendorf, LLP, New York City (Scott R. Matthews of counsel), for respondents.
Patterson Belknap Webb & Tyler LLP, New York City (Stephen P. Younger of counsel), for appellant. Windels Marx Lane & Mittendorf, LLP, New York City (Scott R. Matthews of counsel), for respondents.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, the appeals by plaintiff that were dismissed in the October 2010 order of the Appellate Division reinstated, and the case remitted to the Appellate Division for further proceedings in accordance with this memorandum.
In its October 2010 order, brought up for review on this appeal, the Appellate Division sua sponte dismissed plaintiff's appeals without articulating the basis for its order. We conclude that dismissal was an abuse of discretion. No grounds for dismissing the appeals appear tenable from the record. Plaintiff timely perfected his appeals under the First Department's rules, and the court did not give plaintiff adequate notice if it shortened the time period for him to perfect the appeals. On this record, the appeals could not have been properly dismissed for failure to comply with the court's orders. Accordingly, plaintiff's appeals that were dismissed by the October 2010 Appellate Division order should be reinstated and the case remitted to the Appellate Division to consider the merits of those appeals. In light of this remittal, we do not reach the other issue raised by plaintiff on this appeal.
Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order, insofar as appealed from, reversed, etc.