| U.S. Bank, N.A. v Guichardo |
| 2011 NY Slip Op 09630 [90 AD3d 1032] |
| December 27, 2011 |
| Appellate Division, Second Department |
| U.S. Bank, N.A., Appellant, v Kelvy Guichardo et al.,Defendants. |
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In an action to foreclose a mortgage, the plaintiff appeals from an order of the SupremeCourt, Kings County (Schack, J.), dated November 8, 2010, which, sua sponte, directed thedismissal of the complaint with prejudice and cancelled a certain notice of pendency filed againstthe subject real property.
Ordered that on the Court's own motion, the plaintiff's notice of appeal from the order datedNovember 8, 2010, is deemed an application for leave to appeal from the order, and leave toappeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is reversed, on the facts and in the exercise of discretion, without costsor disbursements.
The defendant Kelvy Guichardo (hereinafter the defendant) defaulted on his mortgage loanand the plaintiff subsequently commenced this action to foreclose the mortgage. The plaintiffmoved to direct service upon the defendant by publication and for certain other related relief. TheSupreme Court, however, became concerned about a potential conflict of interest due to theplaintiff's counsel, Steven J. Baum, P.C., representing both the plaintiff, the assignee of thesubject mortgage, and the defendant Mortgage Electronic Registration Systems, Inc. (hereinafterMERS), as nominee for Aegis Funding Corporation, the assignor of the subject mortgage. In anorder dated February 2, 2009, the Supreme Court denied the plaintiff's motion to direct servicewith leave to renew within 60 days, provided that the plaintiff submit to the Supreme Court anaffirmation by Steven J. Baum explaining whether both MERS and the plaintiff consented to thesimultaneous representation "with 'full disclosure of the implications of the simultaneousrepresentation and the advantages and risks involved.' "
On or about August 4, 2009, approximately six months after the February 2, 2009, order wasissued, Steven J. Baum submitted the requested affirmation, which, inter alia, stated that his firm,Steven J. Baum, P.C., did not simultaneously represent the plaintiff and MERS in this action. Inthe order appealed from, the Supreme Court, sua sponte, directed the dismissal of the complaintwith prejudice and cancelled a certain notice of pendency filed against the subject real property(hereinafter the notice of pendency) on the ground that the affirmation of Steven J. Baum [*2]was submitted 123 days after the expiration of the deadline set forthin the February 2, 2009, order. We reverse.
The Supreme Court improvidently exercised its discretion in, sua sponte, directing thedismissal of the complaint with prejudice and canceling the notice of pendency (see U.S. Bank, N.A. v Emmanuel, 83AD3d 1047, 1048 [2011]; HSBCBank USA, N.A. v Valentin, 72 AD3d 1027, 1029-1030 [2010]). "A court's power todismiss a complaint, sua sponte, is to be used sparingly and only when extraordinarycircumstances exist to warrant dismissal" (U.S. Bank, N.A. v Emmanuel, 83 AD3d at1048; see Rienzi v Rienzi, 23 AD3d450 [2005]). Here, the Supreme Court was not presented with any extraordinarycircumstances warranting dismissal of the complaint. The plaintiff's single delay in submittingthe affirmation of Steven J. Baum was not a sufficient ground upon which to direct the dismissalof the complaint and cancel the notice of pendency (see HSBC Bank USA, N.A. vValentin, 72 AD3d at 1029). There was no pattern of willful noncompliance with courtorders on the part of the plaintiff, and the Supreme Court gave no warning that the failure tosubmit the requested affirmation within 60 days of the February 2, 2009, order would result inthe dismissal of the complaint and cancellation of the notice of pendency. Mastro, A.P.J., Hall,Sgroi and Cohen, JJ., concur.