| Bank of N.Y. v Alderazi |
| 2012 NY Slip Op 06906 [99 AD3d 837] |
| October 17, 2012 |
| Appellate Division, Second Department |
| Bank of New York, Appellant, v Sameeh Alderazi et al.,Defendants. |
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In an action to foreclose a mortgage, the plaintiff appeals from (1) an order of the SupremeCourt, Kings County (Saitta, J.), dated April 19, 2010, which denied that branch of its ex partemotion which was pursuant to RPAPL 1321 for an order of reference, and (2) an order of thesame court dated April 7, 2011, which denied its renewed motion pursuant to RPAPL 1321 foran order of reference and, sua sponte, directed dismissal of the complaint.
Ordered that on the Court's own motion, the appeal from the order dated April 19, 2010, isdismissed, without costs or disbursements, as no appeal lies from the denial of an ex parteapplication (see CPLR 5704; Matter of Voyticky v Gore, 134 AD2d 354 [1987]);and it is further,
Ordered that on the Court's own motion, the notice of appeal from so much of the order datedApril 7, 2011, as, sua sponte, directed dismissal of the complaint, is deemed an application forleave to appeal from that portion of the order, and leave to appeal is granted (see CPLR5701 [c]); and it is further,
Ordered that the order dated April 7, 2011, is reversed, on the law and in the exercise ofdiscretion, and the plaintiff's renewed motion pursuant to RPAPL 1321 for an order of referenceis granted, without costs or disbursements.
The Supreme Court improvidently exercised its discretion in denying the plaintiff's renewedmotion pursuant to RPAPL 1321 for an order of reference. The defendants failed to answer thecomplaint within the time allowed, and the plaintiff submitted, in support of its renewed motion,the mortgage, the note, the verified complaint setting forth the facts establishing the claim, andevidence of the mortgagor's default (seeEmigrant Mtge. Co., Inc. v Fisher, 90 AD3d 823, 824 [2011]; RPAPL 1321). Underthese circumstances, the Supreme Court should have granted the plaintiff's renewed motion foran order of reference.
The Supreme Court improvidently exercised its discretion in, sua sponte, directing thedismissal of the complaint. Since the defendants failed to answer the complaint and did not makepre-answer motions to dismiss the complaint, they waived the defense of lack of standing (see CitiMortgage, Inc. v Rosenthal, 88AD3d 759, 761 [2011]). Moreover, a party's lack of standing does not [*2]constitute a jurisdictional defect and does not warrant a sua spontedismissal of the complaint by the court (see U.S. Bank, N.A. v Emmanuel, 83 AD3d 1047, 1048-1049[2011]). Dillon, J.P., Belen, Austin and Sgroi, JJ., concur. [Prior Case History: 28 Misc 3d376.]