Rosicki, Rosicki & Associates, P.C., Plainview, NY (Melissa S. Kubit and Andrew Morganstern of counsel), for appellant.
REINALDO E. RIVERA, J.P., MARK C. DILLON, RUTH C. BALKIN, and SANDRA L. SGROI, JJ.
Opinion
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Schack, J.), dated April 1, 2014, which denied its unopposed motion for an order of reference, to deem the defendants in default, and to amend the caption, and, sua sponte, directed dismissal of the
complaint, without prejudice, and cancellation of the notice of pendency filed against the subject real property.
ORDERED that on the Court's own motion, the notice of appeal from so much of the order as, sua sponte, directed dismissal of the complaint and cancellation of the notice of pendency is deemed an application for leave to appeal from those portions of the order, and leave to appeal from those portions of the order is granted (see CPLR 5701[c] ); and it is further,
ORDERED that the order is reversed, on the law, without costs or disbursements, and the plaintiff's motion for an order of reference, to deem the defendants in default, and to amend the caption is granted.
The Supreme Court improperly, sua sponte, directed dismissal of the complaint,
without prejudice, and cancellation of the notice of pendency. “A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” (
U.S. Bank, N.A. v. Emmanuel, 83 A.D.3d 1047, 1048,
921 N.Y.S.2d 320 ;
see
Deutsche Bank Natl. Trust Co. v. Martin, 134 A.D.3d 665,
19 N.Y.S.3d 777 ;
Nationstar Mtge., LLC v. Wong,
132 A.D.3d 825,
18 N.Y.S.3d 669 ;
FCDB FF1 2008–1 Trust v. Videjus,
131 A.D.3d 1004,
17 N.Y.S.3d 54 ). Here, the Supreme Court was not presented with extraordinary circumstances warranting the sua sponte dismissal of the complaint (
see
Deutsche Bank Natl. Trust Co. v. Martin, 134 A.D.3d at 665,
19 N.Y.S.3d 777;
Nationstar Mortgage, LLC v. Wong, 132 A.D.3d at 825,
18 N.Y.S.3d 669 ;
Onewest Bank, FSB v. Prince,
130 A.D.3d 700, 701,
14 N.Y.S.3d 66 ;
U.S. Bank, N.A. v. Emmanuel, 83 A.D.3d at 1048–1049,
921 N.Y.S.2d 320 ).
Moreover, the Supreme Court erred in denying the plaintiff's unopposed motion. The plaintiff demonstrated its entitlement to an order of reference by producing the mortgage, unpaid note, and evidence of default (see U.S. Bank NA v. Smith, 132 A.D.3d 848, 850, 19 N.Y.S.3d 62 ; Bank of N.Y. v. Stein, 130 A.D.3d 552, 552–553, 13 N.Y.S.3d 458 ; Wells Fargo Bank, NA v. Ambrosov, 120 A.D.3d 1225, 1226, 993 N.Y.S.2d 322 ). The plaintiff also submitted proof that none of the defendants had appeared or answered the complaint (see U.S. Bank N.A. v. Gulley, 137 A.D.3d 1008, 27 N.Y.S.3d 601 ). Additionally, it demonstrated that the caption should be amended (see CPLR 1024 ; Deutsche Bank Natl. Trust Co. v. Islar, 122 A.D.3d 566, 568, 996 N.Y.S.2d 130 ).