| HSBC Bank USA, N.A. v Alexander |
| 2015 NY Slip Op 00728 [124 AD3d 838] |
| January 28, 2015 |
| Appellate Division, Second Department |
[*1]
| HSBC Bank USA, N.A., Appellant, v Sylvia L.Alexander 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 from an order of theSupreme Court, Kings County (Jacobson, J.), dated April 14, 2014, which denied itsunopposed motion for leave to enter a judgment against the defendants upon their failureto appear or answer the complaint, for an order of reference, and for leave to amend thecaption and, sua sponte, directed the dismissal of the complaint pursuant to CPLR 3215(c) and the cancellation of a certain notice of pendency filed against the subjectproperty.
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 pursuant to CPLR 3215 (c)and the cancellation of a certain notice of pendency filed against the subject property isdeemed to be an application for leave to appeal from those portions of the order, andleave to appeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is reversed, on the law, without costs or disbursements, andthe plaintiff's unopposed motion for leave to enter a judgment against the defendants,upon their failure to appear or answer the complaint, for an order of reference, and forleave to amend the caption is granted.
In October 2007, the plaintiff commenced the instant mortgage foreclosure actionand, in February 2008, the plaintiff moved for an order of reference. In November 2010,the plaintiff filed a notice of withdrawal, requesting that its prior motion, which was stillpending, be withdrawn. In November 2013, following further proceedings, the plaintiffagain requested to withdraw its motion and moved, unopposed, for leave to enter adefault judgment, for an order of reference, and for leave to amend the caption. In theorder appealed from, which was dated April 14, 2014, the Supreme Court denied theplaintiff's unopposed motion and, sua sponte, directed the dismissal of the complaintpursuant to CPLR 3215 (c) and the cancellation of a certain notice of pendency filedagainst the subject property.
The Supreme Court improvidently exercised its discretion in, sua sponte, directingdismissal of the complaint pursuant to CPLR 3215 (c) and the cancellation of the noticeof pendency.[*2]"A court's power to dismiss a complaint,sua sponte, is to be used sparingly and only when extraordinary circumstances exist towarrant dismissal" (OnewestBank, FSB v Fernandez, 112 AD3d 681, 682 [2013] [internal quotation marksomitted]; see Deutsche BankNatl. Trust Co. v Meah, 120 AD3d 465, 466 [2014]; HSBC Bank USA, N.A. vTaher, 104 AD3d 815, 817 [2013]; Aurora Loan Servs., LLC v Sobanke, 101 AD3d 1065,1066 [2012]). There were no extraordinary circumstances warranting dismissal of thecomplaint and cancellation of the notice of pendency (see HSBC Bank USA, N.A. vTaher, 104 AD3d at 817). In February 2008, when the plaintiff took the preliminarystep toward obtaining a default judgment of foreclosure and sale by moving for an orderof reference (see RPAPL 1321 [1]), it initiated proceedings for entry of thedefault judgment within one year of the defendants' default and, thus, did not abandonthis action (see CPLR 3215 [c]; Klein v St. Cyprian Props., Inc., 100 AD3d 711, 712[2012]).
The Supreme Court erred in denying that branch of the plaintiff's unopposed motionwhich was for an order of reference. In support of its motion, the plaintiff submitteddocumentary proof showing that the defendants failed to answer the complaint within thetime allowed and that the plaintiff was the holder of the mortgage and note, as well asproof of the default of the defendant mortgagor, Sylvia L. Alexander, and that, as apreliminary step in obtaining a judgment of foreclosure, the appointment of a referee tocompute the amount due on the consolidated mortgage was proper (see RPAPL1321; Wells Fargo Bank, NA vAmbrosov, 120 AD3d 1225, 1226 [2014]; HSBC Bank USA, N.A. vTaher, 104 AD3d at 816; Bank of N.Y. v Alderazi, 99 AD3d 837, 837-838[2012]).
Furthermore, the Supreme Court also erred in denying that branch of the plaintiff'sunopposed motion which was for leave to enter a default judgment against thedefendants. By submitting proof of service of a copy of the summons and complaint,proof of the facts constituting the claim, and proof of the defaulting defendants' failure toanswer or appear, the plaintiff demonstrated its entitlement to a default judgment againstthe defendants (see CPLR 3215 [f]; U.S. Bank, N.A. v Razon, 115 AD3d 739, 740 [2014]; Mortgage Elec. Registration Sys.,Inc. v Smith, 111 AD3d 804, 806 [2013]; Loaiza v Guzman, 111 AD3d 608, 609 [2013]).
Finally, the plaintiff demonstrated that the caption should be amended (seeCPLR 1024; Deutsche BankNatl. Trust Co. v Islar, 122 AD3d 566, 568 [2014]). Accordingly, the SupremeCourt should have granted that branch of the plaintiff's unopposed motion which was forleave to amend the caption. Balkin, J.P., Leventhal, Dickerson, Miller and LaSalle, JJ.,concur.