| Onewest Bank, FSB v Fernandez |
| 2013 NY Slip Op 08233 [112 AD3d 681] |
| December 11, 2013 |
| Appellate Division, Second Department |
| Onewest Bank, FSB, Appellant, v Ana Fernandezet al., Respondents. |
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In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Kings County (Baily-Schiffman, J.), dated August 17, 2011, whichdenied its ex parte motion for an order of reference appointing a referee to ascertain andcompute the amount due to it and, sua sponte, directed the dismissal of the complaint,with prejudice.
Ordered that the appeal from so much of the order as denied the plaintiff's ex partemotion for an order of reference is dismissed, without costs or disbursements, as noappeal lies from the denial of an ex parte motion (see CPLR 5704; Bank of N.Y. v Alderazi, 99AD3d 837 [2012]); and it is further,
Ordered that on the Court's own motion, the notice of appeal from so much of theorder as, sua sponte, directed the dismissal of the complaint, with prejudice, is deemed tobe an application for leave to appeal from that portion of the order, and leave to appeal isgranted (see CPLR 5701 [c]); and it is further,
Ordered that the order is reversed insofar as reviewed, on the law and in the exerciseof discretion, without costs or disbursements.
The Supreme Court improvidently exercised its discretion in, sua sponte, directingthe dismissal of the complaint. " 'A court's power to dismiss a complaint, sua sponte, is tobe used sparingly and only when extraordinary circumstances exist to warrant dismissal' "(HSBC Bank USA, N.A. vTaher, 104 AD3d 815, 817 [2013], quoting U.S. Bank, N.A. v Emmanuel, 83 AD3d 1047, 1048[2011]; see Aurora Loan Servs.,LLC v Sobanke, 101 AD3d 1065, 1066 [2012]). Here, there were noextraordinary circumstances warranting sua sponte dismissal of the complaint. Moreover,the defendants, having failed to answer the complaint or make pre-answer motions todismiss the complaint, waived the defense of lack of standing (see HSBC Bank USA,N.A. v Taher, 104 AD3d at 817; Bank of N.Y. v Alderazi, 99 AD3d at 838;CitiMortgage, Inc. vRosenthal, 88 AD3d 759, 761 [2011]). "Furthermore, a party's lack of standingdoes not constitute a jurisdictional defect and does not warrant sua sponte dismissal of acomplaint by the court" (HSBC Bank USA, N.A. v Taher, 104 AD3d at 817;see Bank of N.Y. v Alderazi, 99 AD3d at 838; U.S. Bank, N.A. vEmmanuel, 83 AD3d at 1048-1049; Wells [*2]Fargo Bank Minn., N.A. vMastropaolo, 42 AD3d 239, 243-244 [2007]). Dickerson, J.P., Chambers,Roman and Miller, JJ., concur.