| U.S. Bank, N.A. v Razon |
| 2014 NY Slip Op 01602 [115 AD3d 739] |
| March 12, 2014 |
| Appellate Division, Second Department |
| U.S. Bank, National Association,Appellant, v Carissa Razon et al., Defendants. |
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In an action, inter alia, to cancel and vacate two satisfactions of mortgage recordedon November 16, 2010, and January 7, 2011, respectively, and to reinstate a mortgagerecorded on January 18, 2007, the plaintiff appeals, as limited by its brief, from so muchof an order of the Supreme Court, Kings County (Pfau, J.), dated July 9, 2012, as deniedits unopposed motion, in effect, pursuant to CPLR 3215, for leave to enter a judgmentagainst the defendants canceling and vacating the satisfactions of mortgage recorded onNovember 16, 2010, and January 7, 2011, respectively, and reinstating the mortgagerecorded on January 18, 2007, upon the defendants' failure to appear or answer and, bypermission, from so much of the same order as, sua sponte, directed dismissal of thecomplaint and cancellation of the notice of pendency filed against the subject property.
Ordered that the order is reversed insofar as appealed from, on the law, on the facts,and in the exercise of discretion, without costs or disbursements, and the plaintiff'smotion, in effect, pursuant to CPLR 3215, for leave to enter a judgment against thedefendants canceling and vacating the satisfactions of mortgage recorded on November16, 2010, and January 7, 2011, respectively, and reinstating the mortgage recorded onJanuary 18, 2007, upon the defendants' failure to appear or answer, is granted.
The Supreme Court improvidently exercised its discretion in, sua sponte, directingdismissal of the complaint and cancellation of the notice of pendency filed against thesubject property. "A court's power to dismiss a complaint, sua sponte, is to be usedsparingly and only when extraordinary circumstances exist to warrant dismissal" (Onewest Bank, FSB vFernandez, 112 AD3d 681, 682 [2013] [internal quotation marks omitted]; see HSBC Bank USA, N.A. vTaher, 104 AD3d 815, 817 [2013]; Aurora Loan Servs., LLC v Sobanke, 101 AD3d 1065,1066 [2012]; U.S. Bank, N.A. vEmmanuel, 83 AD3d 1047, 1048 [2011]). Here, there were no extraordinarycircumstances warranting dismissal of the complaint and cancellation of the notice ofpendency (see HSBC Bank USA, N.A. v Taher, 104 AD3d at 817; AuroraLoan Servs., LLC v Sobanke, 101 AD3d at 1066; Bank of Am., N.A. v Bah, 95AD3d 1150, 1151-1152 [2012]).
The Supreme Court also erred in denying the plaintiff's unopposed motion, in effect,pursuant to CPLR 3215, for leave to enter a judgment against the defendants cancelingand vacating [*2]the satisfactions of mortgage recordedon November 16, 2010, and January 7, 2011, respectively, and reinstating the mortgagerecorded on January 18, 2007, upon the defendants' failure to appear or answer. "Aparty's right to recover upon a defendant's failure to appear or answer is governed byCPLR 3215" (Beaton v TransitFacility Corp., 14 AD3d 637, 637 [2005]; see Woodson v Mendon LeasingCorp., 100 NY2d 62, 70-71 [2003]). An applicant for a default judgment against adefendant must submit proof of service of the summons and complaint, proof of the factsconstituting the claim, and proof of the defaulting defendant's failure to answer or appear(see CPLR 3215 [f]; Loaiza v Guzman, 111 AD3d 608, 609 [2013]; Dupps v Betancourt, 99 AD3d855, 855 [2012]). Here, in support of its motion, the plaintiff satisfied theserequirements (see MortgageElec. Registration Sys., Inc. v Smith, 111 AD3d 804, 806 [2013]; Dupps vBetancourt, 99 AD3d at 855; Ogman v Mastrantonio Catering, Inc., 82 AD3d 852, 853[2011]). Balkin, J.P., Leventhal, Austin and Roman, JJ., concur.