| Aurora Loan Servs., LLC v Shahmela Shah Sookoo |
| 2012 NY Slip Op 01199 [92 AD3d 705] |
| February 14, 2012 |
| Appellate Division, Second Department |
| Aurora Loan Services, LLC, Appellant, v Shahmela ShahSookoo et al., Defendants. |
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In an action to foreclose a mortgage, the plaintiff appeals (1) from an order of the SupremeCourt, Kings County (Schack, J.), dated March 31, 2009, which denied that branch of its motionwhich was pursuant to RPAPL 1321 for an order of reference appointing a referee to ascertainand compute the amount due to it, with leave to renew, inter alia, upon its presentation of "allloan origination documents" with respect to the subject mortgage, and (2) from an order of thesame court dated August 14, 2009, which denied that branch of its renewed motion which waspursuant to RPAPL 1321 for an order of reference and, sua sponte, directed the dismissal of thecomplaint with prejudice and the cancellation of a notice of pendency filed January 10, 2008.
Ordered that on the Court's own motion, the plaintiff's notice of appeal from so much of theorder dated August 14, 2009, as, sua sponte, directed the dismissal of the complaint withprejudice and the cancellation of the notice of pendency, is deemed an application for leave toappeal from that portion of the order, and leave to appeal is granted (see CPLR 5701 [c]);and it is further,
Ordered that the order dated March 31, 2009, is reversed, on the law, without costs ordisbursements, and that branch of the plaintiff's motion which was pursuant to RPAPL 1321 foran order of reference appointing a referee to ascertain and compute the amount due to it isgranted; and it is further,
Ordered that the appeal from so much of the order dated August 14, 2009, as denied thatbranch of the plaintiff's renewed motion which was for an order of reference is dismissed asacademic, without costs or disbursements, in light of our determination on the appeal from theorder dated March 31, 2009; and it is further,
Ordered that the order dated August 14, 2009, is reversed insofar as reviewed, on the law,without costs or disbursements; and it is further,
Ordered that the matter is remitted to the Supreme Court, Kings County, for furtherproceedings before a different Justice.
The defendant Shahmela Shah Sookoo defaulted on her mortgage loan. The plaintiff, [*2]the holder of the mortgage and allegedly the holder of the note,commenced this action to foreclose the mortgage. None of the defendants appeared in the actionor answered the complaint. As a result, the plaintiff moved, inter alia, pursuant to RPAPL 1321for an order of reference appointing a referee to ascertain and compute the amount due to it. In anorder dated March 31, 2009, the Supreme Court denied the aforementioned branch of theplaintiff's motion with leave to renew, among other things, upon its presentation of "all loanorigination documents" with respect to the subject mortgage. Subsequently, in an order datedAugust 14, 2009, the Supreme Court denied that branch of the plaintiff's renewed motion whichwas for an order of reference and, sua sponte, directed the dismissal of the complaint withprejudice and the cancellation of a notice of pendency filed January 10, 2008, based upon theplaintiff's perceived failure to provide "all loan origination documents," as required by the orderdated March 31, 2009.
The Supreme Court erred in denying that branch of the plaintiff's motion which was for anorder of reference. The defendants failed to answer within the time allowed, and the plaintiffsubmitted, in support of its unopposed motion, the mortgage, the note, the verified complaintsetting forth the facts establishing the claim, and an affidavit of its employee attesting to thedefault (see Emigrant Mtge. Co., Inc. vFisher, 90 AD3d 823 [2011]; RPAPL 1321). Under these circumstances, that branch ofthe plaintiff's motion which was for an order of reference should have been granted.
In light of the above discussion, the Supreme Court erred in, sua sponte, directing thedismissal of the complaint with prejudice and the cancellation of 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]). Under thecircumstances of this case, we deem it appropriate to remit the matter for further proceedingsbefore a different Justice. Skelos, J.P., Hall, Austin and Miller, JJ., concur.