| NYCTL 2008-A Trust v Estate of Locksley Holas |
| 2012 NY Slip Op 01662 [93 AD3d 650] |
| March 6, 2012 |
| Appellate Division, Second Department |
| NYCTL 2008-A Trust et al., Appellants, v Estate ofLocksley Holas et al., Defendants. |
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In an action to foreclose a tax lien, the plaintiffs appeal from an order of the Supreme Court,Kings County (Schack, J.), dated February 17, 2011, which, sua sponte, directed the dismissal ofthe complaint with prejudice and the cancellation of a certain notice of pendency filed against thesubject real property.
Ordered that on the Court's own motion, the notice of appeal from the order dated February17, 2011, is deemed an application for leave to appeal from the order, and leave to appeal isgranted (see CPLR 5701 [c]); and it is further,
Ordered that the order is reversed, on the law, on the facts, and in the exercise of discretion,without costs or disbursements.
The plaintiffs commenced this action to foreclose a tax lien encumbering certain realproperty located in Brooklyn. After all defendants except the New York City Department ofHousing Preservation and Development failed to appear or answer the complaint, the plaintiffsmoved, inter alia, for an order of reference. In an order dated May 3, 2010, the Supreme Courtdenied the plaintiffs' motion with leave to renew within 60 days, provided that they submit to theSupreme Court additional documentation demonstrating their compliance with the requirementsof CPLR 3215 (f).
Apparently unbeknownst to the Supreme Court, the plaintiffs, on August 27, 2010, filed arenewed motion, among other things, for an order of reference. Thereafter, in the order appealedfrom, the Supreme Court, sua sponte, directed the dismissal of the complaint with prejudice andthe cancellation of a certain notice of pendency filed against the subject real property (hereinafterthe notice of pendency) on the ground that the plaintiffs violated the prior order dated May 3,2010, by failing to file a renewed motion for an order of reference and related relief.
The power to dismiss, sua sponte, should be used "sparingly and only when extraordinarycircumstances exist to warrant dismissal" (U.S. Bank, N.A. v Emmanuel, 83 AD3d 1047, 1048 [2011]; see Ling Fei Sun v City of New York,55 AD3d 795, 796 [2008]; Rienzi vRienzi, 23 AD3d 450 [2005]). Here, there were no extraordinary circumstanceswarranting dismissal of the complaint and cancellation of the notice of pendency. The plaintiffsdid, in fact, file a renewed motion and provide the [*2]additionaldocumentation required by the Supreme Court's prior order dated May 3, 2010. There was alsono evidence that the plaintiffs had engaged in a pattern of willful noncompliance withcourt-ordered deadlines or that the Supreme Court ever warned them that their failure to submit atimely renewed motion would subject them to the dismissal of the complaint with prejudice andcancellation of the notice of pendency (see U.S. Bank, N.A. v Guichardo, 90 AD3d 1032 [2011]).Consequently, the Supreme Court erred in, sua sponte, directing the dismissal of the complaintwith prejudice and the cancellation of the notice of pendency. Dillon, J.P., Florio, Austin andRoman, JJ., concur. [Prior Case History: 30 Misc 3d 1224(A), 2011 NY Slip Op50191(U).]