Bank of New York v. Ocean Delite, Inc.

In an action to recover on a promissory note and guarantee, the plaintiff appeals from an order of the Supreme Court, Westchester County (Nastasi, J.), entered October 3, 2002, which, sua sponte, transferred the venue of the action from Westchester County to New York County. Ordered that on the Court’s own motion, the 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, on the law, without costs or disbursements, the Clerk of the Supreme Court, New York County, is directed to deliver to the Clerk of the Supreme Court, Westchester County, all papers filed in this action and certified copies of all minutes and entries (see CPLR 511 [d]), and the matter is remitted to the Supreme Court, Westchester County, for further proceedings in accordance herewith. The Supreme Court erred in, sua sponte, changing the venue of this action to New York County (see Bank of New York v Elance, Inc., 309 AD2d 725 [2003] [decided herewith]). Accordingly, we reverse the order and remit the matter to the Supreme Court, Westchester County, for a determination of the merits of the plaintiff’s motion for leave to enter a judgment against the defendants upon their default in appearing and answering. Altman, J.P., S. Miller, McGinity, Adams and Mastro, JJ., concur.