| US Bank N.A. v Flowers |
| 2015 NY Slip Op 04308 [128 AD3d 951] |
| May 20, 2015 |
| Appellate Division, Second Department |
[*1]
| US Bank National Association,Appellant, v Kawan D. Flowers et al., Respondents. |
Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (LiJue T. Philip andAndrew Morganstern 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 February24, 2014, as (a) denied that branch of its motion which was pursuant to RPAPL 1321 foran order of reference and (b), sua sponte, directed the dismissal of the complaint withoutprejudice and the cancellation of a 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 and the cancellation of thenotice of pendency is deemed to be an application for leave to appeal from those portionsof the order, and leave to appeal from those portions of the order is granted (seeCPLR 5701 [c]); and it is further,
Ordered that the order is reversed insofar as appealed from, on the law, without costsor disbursements, that branch of the plaintiff's motion which was pursuant to RPAPL1321 for an order of reference is granted, and the matter is remitted to the SupremeCourt, Kings County, for further proceedings consistent herewith before a differentJustice.
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, inter alia, that the defendants failedto answer the complaint within the time allowed, that it was the holder of the mortgageand note, that the mortgagor defaulted thereon, and that, as a preliminary step inobtaining a judgment of foreclosure, the appointment of a referee to compute the amountdue on the mortgage would be proper (see RPAPL 1321; HSBC Bank USA, N.A. vTaher, 104 AD3d 815, 816 [2013]; Bank of N.Y. v Alderazi, 99 AD3d 837, 837-838 [2012];Aurora Loan Servs., LLC vShahmela Shah Sookoo, 92 AD3d 705, 707 [2012]; Emigrant Mtge. Co., Inc. vFisher, 90 AD3d 823, 824 [2011]).
Moreover, the Supreme Court erred in, sua sponte, directing the dismissal of thecomplaint and the cancellation of the notice of pendency filed against the subjectproperty for lack of standing. " 'A court's power to dismiss a complaint, suasponte, is to be used sparingly and only when extraordinary circumstances exist towarrant dismissal' " (HSBC Bank USA, N.A. v Taher, 104 AD3d at 817,quoting U.S. Bank, N.A. vEmmanuel, 83 AD3d 1047, 1048 [2011]; see Aurora Loan Servs., [*2]LLC vSobanke, 101 AD3d 1065, 1066 [2012]). Here, the Supreme Court was notpresented with extraordinary circumstances warranting the sua sponte dismissal of thecomplaint and the cancellation of the notice of pendency. Since the defendants did notanswer the complaint and did not make pre-answer motions to dismiss the complaint,they waived the defense of lack of standing (see JP Morgan Mtge. Acquisition Corp. v Hayles, 113 AD3d821 [2014]; Freedom Mtge.Corp. v Toro, 113 AD3d 815 [2014]; HSBC Bank USA, N.A. v Taher,104 AD3d at 817; Bank of N.Y. v Alderazi, 99 AD3d at 838; CitiMortgage, Inc. v Rosenthal,88 AD3d 759, 761 [2011]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d239, 242 [2007]). In any event, a party's lack of standing does not constitute ajurisdictional defect and does not warrant a sua sponte dismissal of the complaint by thecourt (see Wells Fargo Bank,N.A. v Gioia, 114 AD3d 766, 767 [2014]; HSBC Bank USA, N.A. vTaher, 104 AD3d at 817; Bank of N.Y. v Alderazi, 99 AD3d at 838; U.S.Bank, N.A. v Emmanuel, 83 AD3d at 1048-1049).
Since Justice Arthur Schack continues to ignore this Court's precedent, as articulatedin Wells Fargo Bank Minn.,N.A. v Mastropaolo (42 AD3d 239 [2007]), holding that the defense of lack ofstanding is waived if not raised by the defendant in an answer or pre-answer motion todismiss (see Deutsche BankNatl. Trust Co. v Islar, 122 AD3d 566 [2014]; HSBC Bank USA, N.A. vTaher, 104 AD3d at 817; U.S. Bank, N.A. v Emmanuel, 83 AD3d at1048-1049; cf. Bank of N.Y. vCepeda, 120 AD3d 451, 452 [2014]; Bank of N.Y. v Mulligan, 119 AD3d 716, 716 [2014];Wells Fargo Bank, N.A. v Gioia, 114 AD3d at 767), we deem it appropriate toremit the matter to the Supreme Court, Kings County, for further proceedings on thecomplaint before a different Justice. Rivera, J.P., Austin, Cohen and Duffy, JJ.,concur.