Justice Robert J. Muller
Petitioners commenced this combined action, and a court previously dismissed the declaratory judgment suit finding Fairway Drive was a private road owned by petitioners, and not a public road owned by respondent Town of Peru. It also, sua sponte, dismissed petitioners’ remaining Article 78 claim. Petitioners moved for leave to reargue and vacate that decision arguing the court misapplied the law as it was without authority to sua sponte dismiss their remaining claim. The court rejected this contention stating that in view of the court’s initial finding that respondents established that Fairway Drive was not a public road, petitioners could not demonstrate the town failed to perform a duty enjoined on it by failing to maintain the road. Thus, as only a legal question was presented, and petitioners’ theory was meritless, it was not improper for the court to dismiss the claim in the absence of a formal motion for such relief. Petitioners also sought vacatur under CPLR 5019(a) arguing there existed a triable issue of fact if Fairway Drive was abandoned by the town. The court stated §5019(a) only allowed a court to cure "mistake, defect or irregularity," but that did not encompass errors of substance, denying petitioners’ motion.
