| U.S. Bank N.A. v Polanco |
| 2015 NY Slip Op 02111 [126 AD3d 883] |
| March 18, 2015 |
| Appellate Division, Second Department |
[*1]
| U.S. Bank National Association, as Trustee for CreditSuisse First Boston ARMT 2005-11, 3476 Stateview Boulevard, Ft. Mill, SC 29715,Appellant, v Eliud Polanco et al., Respondents. |
Hogan Lovells US LLP, New York, N.Y. (David Dunn, Chava Brandriss, and LeahRabinowitz Lenz of counsel), for appellant.
Kenneth R. Berman, Forest Hills, N.Y., for respondent Eliud Polanco.
In an action to foreclose a mortgage, the plaintiff appeals from a judgment of theSupreme Court, Kings County (Lewis, J.), entered September 30, 2013, which, upon anorder of the same court dated April 27, 2012, sua sponte, inter alia, directing that thecomplaint would be dismissed with prejudice unless it filed an attorney's affirmation inaccordance with Administrative Order 548/10 of the Chief Administrative Judge of theCourts, as replaced by Administrative Order 431/11 of the Chief Administrative Judge ofthe Courts, within 60 days of the date of the order, is in favor of the defendants andagainst it dismissing the complaint with prejudice.
Ordered that the judgment is reversed, on the law, with costs, the order is vacated,the complaint is reinstated, and the matter is remitted to the Supreme Court, KingsCounty, for further proceedings in accordance herewith.
On February 4, 2008, the plaintiff commenced this foreclosure action against, amongothers, the defendant Eliud Polanco. Polanco interposed a verified answer. In September2009, the plaintiff moved, inter alia, for summary judgment on the complaint insofar asasserted against Polanco and an order of reference. In an order dated April 27, 2012, theSupreme Court, sua sponte, directed that the motion and the complaint would bedismissed with prejudice unless, within 60 days of the issuance of that order, the plaintifffiled an attorney's affirmation attesting to the accuracy of the plaintiff's documents inaccordance with Administrative Order 548/10, issued by the Chief Administrative Judgeof the Courts on October 20, 2010, which has since been replaced by AdministrativeOrder 431/11 of the Chief Administrative Judge of the Courts (hereinafter together theAdministrative Order). The plaintiff failed to comply with the 60-day deadline, and onSeptember 30, 2013, a judgment was entered dismissing the complaint with prejudice.The plaintiff appeals.
The Administrative Order requires the counsel for the plaintiff in a residentialmortgage foreclosure action to file with the court an affirmation confirming the accuracyof the plaintiff's pleadings. Where an action was pending on the effective date of theAdministrative Order, and no judgment of foreclosure has been entered, theAdministrative Order provides that the affirmation must be filed "at the time of filingeither the proposed order of reference or the proposed judgment of foreclosure." Here,the action was pending on the effective date of the Administrative Order, and theplaintiff filed its proposed order of reference more than one year before the [*2]Administrative Order was issued. Under thosecircumstances, the plaintiff is not required to file the attorney's affirmation until it filesthe proposed judgment of foreclosure (see Wells Fargo Bank, NA v Ambrosov, 120 AD3d 1225[2014]; Flagstar Bank vBellafiore, 94 AD3d 1044, 1045 [2012]; US Bank, N.A. v Boyce, 93 AD3d 782 [2012]). Therefore,the Supreme Court erred when it, sua sponte, directed that the plaintiff's motion would bedismissed unless it filed the attorney's affirmation within 60 days.
Furthermore, "[a] court's power to dismiss a complaint, sua sponte, is to be usedsparingly and only when extraordinary circumstances exist to warrant dismissal" (U.S. Bank, N.A. v Emmanuel,83 AD3d 1047, 1048 [2011]; see Aurora Loan Servs., LLC v Sobanke, 101 AD3d 1065,1066 [2012]; Bank of Am.,N.A. v Bah, 95 AD3d 1150, 1151-1152 [2012]). Here, the Supreme Court wasnot presented with any extraordinary circumstances warranting a sua sponte dismissal ofthe complaint, and there was no indication that the plaintiff had engaged in a pattern ofwillful noncompliance with court-ordered deadlines (see Bank of Am., N.A. vBah, 95 AD3d at 1151-1152; U.S. Bank, N.A. v Guichardo, 90 AD3d 1032, 1033[2011]). Consequently, the court erred in, sua sponte, directing the dismissal of thecomplaint with prejudice (seeBank of N.Y. v Castillo, 120 AD3d 598, 600 [2014]; Bank of Am., N.A. vBah, 95 AD3d at 1151-1152; U.S. Bank, N.A. v Guichardo, 90 AD3d at1033; U.S. Bank, N.A. v Emmanuel, 83 AD3d at 1048).
Polanco's remaining contentions either are without merit or have been renderedacademic by our determination.
Accordingly, we reverse the judgment, vacate the order, reinstate the complaint, andremit the matter to the Supreme Court, Kings County, for a determination of theplaintiff's motion on the merits. Dillon, J.P., Leventhal, Sgroi and Hinds-Radix, JJ.,concur.