By Connolly, J.P.; Maltese, Dowling, Landicino, JJ.
ROBERT L. MORROW, ETC., app-res, v. VIBRATION MOUNTINGS & CONTROLS, INC., ET AL., res-app — (Index No. 602803/19) Lewis Johs Avallone Aviles, LLP, Islandia, NY (James F. Murphy of counsel), for appellant-respondent. Cole Schotz P.C., New York, NY (Steven L. Klepper and Bradley P. Pollina of counsel), for respondents-appellants. In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, and the defendants cross-appeal, from an order of the Supreme Court, Suffolk County (Elizabeth H. Emerson, J.), dated July 20, 2021. The order, insofar as appealed from, sua sponte, converted the first cause of action from one alleging breach of contract to one alleging promissory estoppel. The order, insofar as cross-appealed from, upon converting the first cause of action from one alleging breach of contract to one alleging promissory estoppel, denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the first cause of action. ORDERED that on the Court’s own motion, the notice of appeal from so much of the order as, sua sponte, converted the first cause of action from one alleging breach of contract to one alleging promissory estoppel is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c]); and it is further, ORDERED that the order is reversed insofar as appealed from, on the law; and it is further, ORDERED that the order is affirmed insofar as cross-appealed from; and it is further, ORDERED that one bill of costs is awarded to the plaintiff. The plaintiff was employed by the defendants from 2002 to 2013. On February 8, 2019, the plaintiff commenced this action against the defendants, alleging that they breached an agreement to issue him “phantom stock” in an amount equivalent to a 1.5% interest in the defendants. The first cause of action alleged breach of contract. In September 2019, the defendants moved pursuant to CPLR 3211(a)(5) and (7) to dismiss the complaint as time-barred and for failure to state a cause of action. By order dated July 20, 2021, the Supreme Court, inter alia, determined that the plaintiff failed to state a cause of action for breach of contract. However, instead of granting that branch of the defendants’ motion which was to dismiss the first cause of action, the court, sua sponte, converted the first cause of action from one alleging breach of contract to one alleging promissory estoppel. The court determined that the plaintiff stated a cause of action for promissory estoppel and that the cause of action was not time-barred and, accordingly, denied that branch of the defendants’ motion which was to dismiss the first cause of action. The plaintiff appeals, and the defendants cross-appeal.
