June 19, 2013
Maurice Taylor, appellant,
Eddy Curry, Jr., respondent. Index No. 11444/10
Reisman, Rubeo & McClure, LLP, Hawthorne, N.Y. (David S. Toy of counsel), for appellant.
Gordon & Rees LLP, New York, N.Y. (Joshua S. Hurwit and Benjamin A. Levine of counsel), for respondent.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, L. PRISCILLA HALL, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Westchester County (Walker, J.), entered January 10, 2012, which granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint.
ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Westchester County, for a determination on the merits of the defendant's motion.
The defendant moved to dismiss the complaint pursuant to CPLR 3211(a) for lack of personal jurisdiction (see CPLR 3211[a]). However, in the order appealed from, the Supreme Court directed the dismissal of the complaint on the ground that the complaint failed to state a cause of action. The plaintiff appeals.
The plaintiff was prejudiced when the Supreme Court directed the dismissal of the complaint on a ground that was not litigated or raised by the parties (see Greene v Davidson, 210 A.D.2d 108, 109; Matter of Dental Socy. of State of N.Y. v Carey, 92 A.D.2d 263, 264, affd 61 N.Y.2d 330; see also Matter of Tilcon N.Y., Inc. v Town of Poughkeepsie, 87 A.D.3d 1148, 1152; cf. Tirado v Miller, 75 A.D.3d 153, 154; Schrank v Lederman, 52 A.D.3d 494, 495). Accordingly, the matter must be remitted to the Supreme Court, Westchester County, for a determination on the merits of the defendant's motion.
RIVERA, J.P., DICKERSON, LEVENTHAL and HALL, JJ., concur.