Pigott v. Hamalian

—In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated October 14, 1997, which granted the application of the defendant Reynold Mason to dismiss the complaint insofar as asserted against him on the ground of improper service. Ordered that on the Court’s own motion, the appellant’s notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701 [c]); and it is further, Ordered that the order is reversed, as a matter of discretion in the interest of justice, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for a hearing to determine the validity of service upon the defendant Reynold Mason. The order appealed from did not decide a motion on notice, 384 and, thus, is not appealable as of right (see, Rassaei v Kessler, 252 AD2d 577; Sherwood v Roper, 237 AD2d 275). However, under the circumstances, and in light of the obvious procedural irregularities that resulted in an order dismissing the complaint insofar as asserted against the defendant Reynold Mason due to allegedly improper service upon him without a full hearing on the record, we exercise our discretion to reverse the order, and remit this matter for a hearing, on the record, to determine the validity of service upon Mason. S. Miller, J. P., Ritter, Altman and H. Miller, JJ., concur.