| MidFirst Bank v Eddy |
| 2015 NY Slip Op 01132 [125 AD3d 1458] |
| February 6, 2015 |
| Appellate Division, Fourth Department |
[*1]
| MidFirst Bank, Appellant, v Eugene A. Eddy et al.,Respondents. |
Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore (Joseph F.Battista of counsel), for plaintiff-appellant.
Appeal from an order of the Supreme Court, Onondaga County (Anthony J. Paris,J.), entered July 8, 2013. The order denied plaintiff's motion to vacate a prior order andjudgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously reversed on thelaw without costs, the motion to vacate the order and judgment dated November 15,2012 is granted, that order and judgment is vacated, the complaint is reinstated andplaintiff is granted 30 days from service of the order of this Court with notice of entry tofile and serve either a motion or an ex parte application, as appropriate, for a judgment offoreclosure and sale.
Memorandum: Plaintiff commenced this action in October 2011 to foreclose on amortgage that was secured by property owned by defendants. Defendants failed toanswer or appear and, upon plaintiff's motion, Supreme Court issued an order ofreference pursuant to RPAPL 1321. The order of reference, dated July 3, 2012, directedthe Referee to file his report on or before October 3, 2012, and directed plaintiff to"submit either a Motion or [an] Ex Parte Application, as appropriate, for a Judgment ofForeclosure and Sale on or before November 3, 2012." The order also provided thatplaintiff's failure "to adhere to the deadlines set forth in this . . . Order,without good cause shown, shall be deemed an abandonment of the action pursuant to 22NYCRR [ ] 202.48 and shall result in the Court's dismissal of the complaint." Plaintiffdid not submit a motion or an ex parte application for a judgment of foreclosure and saleby November 3, 2012, and by order and judgment dated November 15, 2012 (dismissalorder), the court dismissed the complaint sua sponte. The Referee thereafter issued hisreport on February 5, 2013.
The court erred in denying plaintiff's motion seeking to vacate the dismissal order.The court improperly dismissed the complaint sua sponte pursuant to 22 NYCRR 202.48,and no extraordinary circumstances are present in this case that otherwise would warrantthe court's exercise of its power to dismiss a complaint sua sponte (see Midfirst Bank v Bellinger,117 AD3d 1520, 1521-1522 [2014]).
We therefore reverse the order, grant plaintiff's motion, vacate the dismissal orderand reinstate the complaint. We further direct plaintiff to "submit [to Supreme Court]either a Motion or [an] Ex Parte Application, as appropriate, for a Judgment ofForeclosure and Sale" within 30 days of service of the order of this Court with notice ofentry. Present—Centra, J.P., Fahey, Lindley, Sconiers and Whalen, JJ.