| Emigrant Mtge. Co., Inc. v Gosdin |
| 2014 NY Slip Op 05151 [119 AD3d 639] |
| July 9, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Emigrant Mortgage Company, Inc.,Appellant, v Brian A. Gosdin, Respondent, et al.,Defendants. |
Knuckles, Komosinski & Elliott, LLP, Elmsford, N.Y. (Fincey John ofcounsel), for appellant.
Christopher Thompson, West Islip, N.Y., for respondent.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, fromso much of an order of the Supreme Court, Nassau County (Adams, J.), enteredDecember 14, 2012, as denied that branch of its renewed motion which was pursuant toRPAPL 1321 for an order of reference based upon its alleged failure to comply with thenotice requirements of RPAPL 1304, and, sua sponte, directed the dismissal of thecomplaint.
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 is deemed an application forleave to appeal from that portion of the order, and leave to appeal from that portion of theorder is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is reversed insofar as appealed from, on the facts and in theexercise of discretion, so much of the order as denied, as academic, that branch of thecross motion of the defendant Brian A. Gosdin which was for leave to serve and file alate answer is vacated, and the matter is remitted to the Supreme Court, Nassau County,for a determination on the merits of that branch of the cross motion of the defendantBrian A. Gosdin and, if warranted, that branch of the plaintiff's renewed motion whichwas pursuant to RPAPL 1321 for an order of reference; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
On June 27, 2008, the defendant Brian A. Gosdin executed a promissory note in theamount of $160,000 in favor of the plaintiff, which was secured by a mortgage on realproperty owned by Gosdin. In January 2010, the plaintiff commenced this mortgageforeclosure action against, among others, Gosdin, who did not serve an answer to thecomplaint. In an order entered December 14, 2012, the Supreme Court denied theplaintiff's renewed motion, inter alia, pursuant to RPAPL 1321 for an order of referencebased upon its alleged failure to comply with the notice requirements of RPAPL 1304,and, sua sponte, directed dismissal of the complaint. In addition, the court, among otherthings, denied, as academic, that branch of Gosdin's cross motion which was for [*2]leave to serve and file a late answer.
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"(Onewest Bank, FSB vFernandez, 112 AD3d 681, 682 [2013] [internal quotation marks omitted]; see U.S. Bank, N.A. v Razon,115 AD3d 739 [2014];HSBC Bank USA, N.A. v Taher, 104 AD3d 815, 817 [2013]). Here, there wereno extraordinary circumstances warranting dismissal of the complaint (see U.S. Bank,N.A. v Razon, 115 AD3d at 739; HSBC Bank USA, N.A. v Taher, 104AD3d at 817; Aurora LoanServs., LLC v Sobanke, 101 AD3d 1065, 1066 [2012]; Bank of Am., N.A. v Bah, 95AD3d 1150, 1151-1152 [2012]). Contrary to the Supreme Court's determination, theplaintiff demonstrated that it complied with the notice requirements of RPAPL 1304 (cf. Aurora Loan Servs., LLC vWeisblum, 85 AD3d 95 [2011]). Moreover, we note that while the SupremeCourt pointed out that the plaintiff's delay of over one year in renewing its motion, interalia, for an order of reference was sufficient to justify dismissal under CPLR 3215 (c),the plaintiff's original application for this relief was timely (see Klein v St. Cyprian Props.,Inc., 100 AD3d 711, 712 [2012]; Allstate Ins. Co. v Austin, 48 AD3d 720, 721 [2008]; NC Venture I, L.P. v CompleteAnalysis, Inc., 22 AD3d 540, 543 [2005]).
Since the Supreme Court did not consider the merits of that branch of the plaintiff'srenewed motion which was pursuant to RPAPL 1321 for an order of reference, or thatbranch of Gosdin's cross motion which was for leave to serve and file a late answer, thematter must be remitted to the Supreme Court, Nassau County, for a determination on themerits of that branch of the cross motion and, if warranted, that branch of the plaintiff'srenewed motion which was for an order of reference (see Klein v St. Cyprian Props.,Inc., 100 AD3d at 712).
The parties' remaining contentions are not properly before this Court. Skelos, J.P.,Lott, Roman and LaSalle, JJ., concur.