| Midfirst Bank v Bellinger |
| 2014 NY Slip Op 03365 [117 AD3d 1520] |
| May 9, 2014 |
| Appellate Division, Fourth Department |
[*1]
| Midfirst Bank, Appellant, v Andrew J. Bellinger et al.,Respondents, et al., Defendants. |
Frenkel Lambert Weiss, Weisman & Gordon, LLP, Bay Shore (MichelleMaccagnano of counsel), for plaintiff-appellant.
Appeal from an order and judgment (one paper) of the Supreme Court, OnondagaCounty (James P. Murphy, J.), entered May 30, 2013. The order and judgment denied themotion of plaintiff to vacate an order and judgment of dismissal dated December 19,2012.
It is hereby ordered that the order and judgment so appealed from is unanimouslyreversed on the law without costs, the motion to vacate the order and judgment datedDecember 19, 2012 is granted, that order and judgment is vacated, the complaint isreinstated and plaintiff is granted 30 days from service of the order of this Court withnotice of entry to file and serve either a motion or an ex parte application, as appropriate,for a judgment of foreclosure and sale.
Memorandum: Plaintiff commenced this action in February 2012 to foreclose on amortgage that was secured by property owned by Andrew J. and Carrie L. Bellinger(defendants). Defendants failed to answer or appear, and in July 2012 plaintiff moved foran order of reference pursuant to RPAPL 1321. Supreme Court granted plaintiff's motionand issued an order of reference, entered August 31, 2012, directing the Referee to filehis report on or before November 1, 2012. The order of reference further directedplaintiff to "submit either a Motion or [an] Ex Parte Application, as appropriate, for aJudgment of Foreclosure and Sale" on or before December 15, 2012. The order ofreference provided that plaintiff's failure to submit a motion or an ex parte application bythat date would be "deemed an abandonment of the action pursuant to 22 NYCRR. . . 202.48 and shall result in the Court's dismissal of the complaint."Plaintiff failed to submit a motion or an ex parte application by December 15, 2012. Byorder and judgment dated December 19, 2012 (dismissal order), the court dismissedplaintiff's complaint sua sponte. The Referee did not issue his report until February 1,2013. Plaintiff moved to vacate the dismissal order, arguing, inter alia, that 22 NYCRR202.48 was inapplicable and that the order of reference provided plaintiff with norecourse to avoid dismissal of the complaint if the Referee had not yet submitted hisreport as of December 15, 2012. By the order and judgment on appeal, the court deniedplaintiff's motion to vacate the dismissal order. We reverse.
We note at the outset that we agree with plaintiff that its time to take an appeal fromthe dismissal order has not yet expired because the court, rather than a party, served thedismissal order on plaintiff (see CPLR 5513 [a]; Siegel, NY Prac§ 533 at 948 [5th ed 2011]). That is of no practical consequence, however,because plaintiff did not attempt to appeal directly from the dismissal order nor, in anyevent, could plaintiff do so inasmuch as the dismissal order is an ex parte order fromwhich no appeal lies as of right (see CPLR 5701 [a] [2]; Sholes vMeagher, 100 NY2d 333, 335 [2003]; People ex rel. De Capua v Lape, 17 AD3d 1041, 1042[2005]). Rather, plaintiff used the appropriate procedural mechanism to seek review ofthe dismissal order by moving, upon notice, to vacate the dismissal order and appealingas of right to this Court from the order and judgment denying that motion (seeCPLR 5701 [a] [3]; Sholes, 100 NY2d at 335). We agree with plaintiff thatthis appeal brings up for review the order of reference as a non-final order thatnecessarily affected the final order and judgment on appeal (see CPLR 5501 [a][1]).
Contrary to plaintiff's contention, the court was not required to comply with CPLR3216 before dismissing the complaint inasmuch as, by its terms, CPLR 3216 applies onlywhen issue has been joined in the action (see CPLR 3216 [b] [1]; Attarian vCutting Edge Marble & Granite, 285 AD2d 432, 433 [2001]). Nevertheless, weagree with plaintiff that the court erred in dismissing the complaint sua sponte pursuantto 22 NYCRR 202.48. That rule provides that "[p]roposed orders or judgments. . . must be submitted for signature, unless otherwise directed by the court,within 60 days after the signing and filing of the decision directing that the order besettled or submitted . . . Failure to submit the order or judgment timely shallbe deemed an abandonment of the motion or action, unless for good cause shown" (22NYCRR 202.48 [a], [b]). As the Court of Appeals wrote, "[b]y its plain terms, section202.48 (a) speaks to the circumstances where the court's decision expressly directs aparty to submit or settle an order or judgment" (Funk v Barry, 89 NY2d 364, 367[1996]). Thus, the Court held that "the 60-day period applies only where the courtexplicitly directs that the proposed judgment or order be settled or submitted forsignature" (id. at 365). Here, the order of reference did not explicitly directplaintiff to settle or submit an order or judgment for signature. Rather, it directed plaintiffto submit a "Motion or [an] Ex Parte Application" seeking a judgment of foreclosure andsale. We therefore conclude that the court erred in dismissing the complaint in relianceon 22 NYCRR 202.48 (see Funk, 89 NY2d at 365; Shamshovich v Shvartsman,110 AD3d 975, 976-977 [2013]; Chang v Botsacos, 92 AD3d 610, 610 [2012]). We note inany event that " '[u]se of the [sua sponte] power of dismissal must be restricted tothe most extraordinary circumstances,' and no such extraordinary circumstances arepresent in this case" (Hurd vHurd, 66 AD3d 1492, 1493 [2009]).
We do not address plaintiff's further contention that the court erred in relying onCPLR 3215 in dismissing the complaint inasmuch as the court did not in fact rely uponthat statute. Consequently, we conclude that the court erred in denying plaintiff's motionto vacate the dismissal order, and we therefore reverse the order and judgment, grant themotion, vacate the dismissal order, and reinstate the complaint. We further direct plaintiffto "submit [to Supreme Court] either a Motion or [an] Ex Parte Application, asappropriate, for a Judgment of Foreclosure and Sale" within 30 days of service of theorder of this Court with notice of entry. Present—Scudder, P.J., Smith, Carni,Lindley and Sconiers, JJ.