| Bank of Am., N.A. v Bah |
| 2012 NY Slip Op 03969 [95 AD3d 1150] |
| May 23, 2012 |
| Appellate Division, Second Department |
| Bank of America, National Association, as Successor by Merger toLaSalle Bank National Association, as Trustee for First Franklin Mortgage Loan Trust, MortgageLoan Asset-Backed Certificates, Series 2006-FF18, Appellant, v Alseny Bah 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 January 7, 2011, which, sua sponte, directed thedismissal of the complaint with prejudice and the cancellation of a certain notice of pendencyfiled against the subject real property, and (2), as limited by its brief, from so much of an order ofthe same court dated June 27, 2011, as, in effect, denied that branch of its unopposed motionwhich was pursuant to CPLR 5015 to vacate the order dated January 7, 2011.
Ordered that on the Court's own motion, the notice of appeal from the order dated January 7,2011, is deemed to be an application for leave to appeal from that order, and leave to appeal isgranted (see CPLR 5701 [c]); and it is further,
Ordered that the order dated January 7, 2011, is reversed, on the law, without costs ordisbursements; and it is further,
Ordered that the appeal from the order dated June 27, 2011, is dismissed as academic,without costs or disbursements, in light of our determination on the appeal from the order datedJanuary 7, 2011.
In 2009 the plaintiff commenced the instant foreclosure action against homeowner AlsenyBah and additional defendants, and filed a notice of pendency against the subject real property.No defendant has ever appeared in this action.
The plaintiff eventually moved for, inter alia, an order of reference. In an order datedNovember 3, 2010, the Supreme Court indicated that it would not consider the motion unless,within 60 days of the issuance of that order, the plaintiff submitted an attorney's affirmationattesting to the accuracy of the plaintiff's documents.
On December 9, 2010, well before the 60-day deadline, the plaintiff moved pursuant toCPLR 2004 for an enlargement of time to file the attorney's affirmation. The Supreme Courtnever ruled on that motion. Instead, in an order dated January 7, 2011, issued only a few daysafter [*2]the 60-day deadline had passed, the Supreme Court, suasponte, directed the dismissal of the complaint with prejudice and the cancellation of the noticeof pendency. The Supreme Court characterized the failure of the plaintiff's counsel to submit therequested attorney's affirmation as "delinquent conduct," mandating dismissal of the complaint.In its order, the Supreme Court did not mention the plaintiff's pending motion for an enlargementof time to file the attorney's affirmation.
"A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only whenextraordinary circumstances exist to warrant dismissal" (U.S. Bank, N.A. v Emmanuel, 83 AD3d 1047, 1048 [2011]). Here,there were no extraordinary circumstances warranting dismissal of the complaint and theconcomitant cancellation of the notice of pendency. Contrary to the Supreme Court'sdetermination, the plaintiff's counsel did not engage in "delinquent conduct." Rather, theplaintiff's counsel timely moved for an enlargement of time to file the required attorney'saffirmation, and there is no evidence of a pattern of willful noncompliance with court-ordereddeadlines. Consequently, the Supreme Court erred in, sua sponte, directing the dismissal of thecomplaint with prejudice and the cancellation of the notice of pendency (see NYCTL 2008-A Trust v Estate ofLocksley Holas, 93 AD3d 650 [2012]; Aurora Loan Servs., LLC v Shahmela Shah Sookoo, 92 AD3d 705[2012]; U.S. Bank, N.A. v Emmanuel, 83 AD3d at 1048; HSBC Bank USA, N.A. v Valentin, 72AD3d 1027, 1029 [2010]). Angiolillo, J.P., Dickerson, Hall and Cohen, JJ., concur.