| Bank of N.Y. v Mulligan |
| 2014 NY Slip Op 05291 [119 AD3d 716] |
| July 16, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Bank of New York, Appellant, v DeniseMulligan et al., Defendants. |
Tompkins, McGuire, Wachenfeld & Barry, LLP, New York, N.Y. (Andrew P.Zacharda of counsel), for appellant.
In an action to foreclose a mortgage, the plaintiff appeals (1), as limited by its brief,from so much of an order of the Supreme Court, Kings County (Schack, J.), dated June3, 2008, as denied its ex parte application for an order of reference and for leave to entera default judgment against certain defendants, and (2) an order of the same court datedAugust 25, 2010, which denied its renewed application for an order of reference and forleave to enter a default judgment against certain defendants and, sua sponte, directed thedismissal of the complaint with prejudice and the cancellation of the notice of pendencyfiled against the subject real property.
Ordered that on the Court's own motion, the appeals from so much of the orders asdenied the plaintiff's ex parte applications are deemed applications pursuant to CPLR5704 (a) to modify those portions of the orders, and the applications are denied, as theplaintiff failed to submit an affidavit in accordance with CPLR 3215 (f) made by theplaintiff or an authorized agent of the plaintiff (see HSBC Bank USA, N.A. v Betts, 67 AD3d 735, 736[2009]); and it is further,
Ordered that on the Court's own motion, the notice of appeal from so much of theorder dated August 25, 2010, as, sua sponte, directed the dismissal of the complaint withprejudice and the cancellation of the notice of pendency filed against the subject realproperty is deemed an application for leave to appeal from those portions of the order,and leave to appeal from those portions of the order is granted (see CPLR 5701[c]); and it is further,
Ordered that the order dated August 25, 2010, is modified, on the law, by deletingthe provisions thereof directing dismissal of the complaint with prejudice and thecancellation of the notice of pendency filed against the subject real property; as somodified, the order dated August 25, 2010, is affirmed insofar as reviewed on the appeal,without costs or disbursements.
The Supreme Court erred when it, sua sponte, directed the dismissal of the complaintand the cancellation of the notice of pendency filed against the subject property for lackof standing (see Wells FargoBank, N.A. v Gioia, 114 AD3d 766, 767 [2014]). "A court's power to dismiss acomplaint, sua sponte, is to be used sparingly and only when extraordinary circumstancesexist to warrant dismissal" (U.S.Bank, N.A. v Emmanuel, 83 AD3d 1047, 1048 [2011]; see HSBC BankUSA, N.A. v Taher, [*2]104 AD3d 815, 817 [2013])."[A] party's lack of standing does not constitute a jurisdictional defect and does notwarrant sua sponte dismissal of a complaint by the court" (HSBC Bank USA, N.A. vTaher, 104 AD3d at 817; see Bank of N.Y. v Alderazi, 99 AD3d 837, 838 [2012];U.S. Bank, N.A. v Emmanuel, 83 AD3d at 1048-1049). Here, the Supreme Courtwas not presented with any extraordinary circumstances warranting sua sponte dismissalof the complaint and cancellation of the notice of pendency. Dillon, J.P., Chambers, Halland Maltese, JJ., concur. [Prior Case History: 2008 NY Slip Op 31501(U).]