| Bank of N.Y. v Cepeda |
| 2014 NY Slip Op 05614 [120 AD3d 451] |
| August 6, 2014 |
| Appellate Division, Second Department |
[*1]
| Bank of New York, as Trustee for the CertificateholdersCwalt, Inc. Alternate Loan Trust 2005-58 Mortgage Pass-Through Certificates,Appellant, v Swenda A. Cepeda, Respondent, et al.,Defendants. |
Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, Bay Shore, N.Y. (Joseph F.Battista of counsel), for appellant.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, fromso much of an order of the Supreme Court, Kings County (Schack, J.), dated May 2,2013, as denied that branch of its motion which was pursuant to RPAPL 1321 for anorder of reference and, sua sponte, directed dismissal of the complaint and cancellationof the notice of pendency filed against the subject property.
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 and the cancellation of thenotice of pendency filed against the subject property is deemed an application for leaveto appeal from those portions of the order, and leave to appeal from those portions of theorder is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is reversed insofar as appealed from, on the law, without costsor disbursements, and that branch of the plaintiff's motion which was pursuant to RPAPL1321 for an order of reference is granted; and it is further,
Ordered that the matter is remitted to the Supreme Court, Kings County, for furtherproceedings consistent herewith before a different justice.
The Supreme Court erred in denying that branch of the plaintiff's motion which waspursuant to RPAPL 1321 for an order of reference. In support of its unopposed motion,the plaintiff submitted documentary proof showing that the defendants failed to answerthe complaint within the time allowed, that it was the holder of the mortgage and note,that the mortgagor defaulted thereon, and that, as a preliminary step in obtaining ajudgment of foreclosure, the appointment of a referee to compute the amount due on themortgage would be proper (see RPAPL 1321; HSBC Bank USA, N.A. v Taher, 104 AD3d 815, 816[2013]; Bank of N.Y. vAlderazi, 99 AD3d 837, 837-838 [2012]; Aurora Loan Servs., LLC v Shahmela Shah Sookoo, 92 AD3d705, 707 [2012]).
Moreover, the Supreme Court abused its discretion in, sua sponte, directing dismissalof the complaint and the cancellation of the notice of pendency filed against the subjectproperty for lack of standing. A court's power to dismiss a complaint, sua sponte, is to beused sparingly and only when extraordinary circumstances exist to warrant dismissal(see HSBC Bank USA, N.A. v Taher, 104 AD3d at 817; Aurora Loan Servs., LLC vSobanke, 101 AD3d 1065, 1066 [2012]; U.S. Bank, N.A. v Emmanuel, 83 AD3d 1047, 1048[2011]). Here, the Supreme Court was not presented with extraordinary circumstanceswarranting sua sponte dismissal of the complaint and cancellation of the notice ofpendency. Since the defendants did not answer the complaint and did not makepre-answer motions to dismiss the complaint, they waived the defense of lack of standing(see Freedom Mtge. Corp. vToro, 113 AD3d 815 [2014]; JP Morgan Mtge. Acquisition Corp. v Hayles, 113 AD3d821 [2014]; HSBC Bank USA, N.A. v Taher, 104 AD3d at 817; Bank ofN.Y. v Alderazi, 99 AD3d at 838). Furthermore, a party's lack of standing does notconstitute a jurisdictional defect and does not warrant a sua sponte dismissal of thecomplaint by the court (seeWells Fargo Bank, N.A. v Gioia, 114 AD3d 766, 767 [2014]; HSBC BankUSA, N.A. v Taher, 104 AD3d at 817; Bank of N.Y. v Alderazi, 99 AD3d at838; U.S. Bank, N.A. v Emmanuel, 83 AD3d at 1048-1049).
Under the circumstances of this case, and in light of our past admonition in HSBC Bank USA, N.A. vTaher (104 AD3d 815 [2013]), we deem it appropriate to remit the matter to theSupreme Court, Kings County, for further proceedings before a different justice.Dickerson, J.P., Leventhal, Cohen and Hinds-Radix, JJ., concur.