| Onewest Bank, FSB v Prince |
| 2015 NY Slip Op 05922 [130 AD3d 700] |
| July 8, 2015 |
| Appellate Division, Second Department |
[*1]
| Onewest Bank, FSB, Successor in Interest from theFDIC Conservatorship of Indymac Bank, FSB, Appellant, v Victor E. Prince etal., Defendants. |
Teitelbaum & Baskin, LLP, White Plains, N.Y. (Jay Teitelbaum of counsel), forappellant.
Polizzotto & Polizzotto, LLC, Brooklyn, N.Y. (Miguel A. Torrellas of counsel),for defendants.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Kings County (Martin, J.), dated October 18, 2012, which denied thatbranch of its unopposed motion which was for an order of reference and, in effect,denied those branches of the motion which were for summary judgment on thecomplaint, to strike the answers of the defendants Victor E. Prince and Bridget Claxton,and for leave to amend the caption, and, sua sponte, directed the dismissal of thecomplaint.
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 is deemed an application forleave to appeal from that portion of the order, and leave to appeal is granted (seeCPLR 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 an order of reference, for summary judgment on thecomplaint, to strike the answers of the defendants Victor E. Prince and Bridget Claxton,and for leave to amend the caption is granted.
The Supreme Court improperly, sua sponte, directed the dismissal of the complainton the ground that the plaintiff lacked standing. "A court's power to dismiss a complaint,sua sponte, is to be used sparingly and only when extraordinary circumstances exist towarrant dismissal" (U.S. Bank,N.A. v Emmanuel, 83 AD3d 1047, 1048 [2011]; see U.S. Bank N.A. v Polanco,126 AD3d 883 [2015]; Citimortgage, Inc. v Chow Ming Tung, 126 AD3d 841[2015]; Bank of N.Y. vCastillo, 120 AD3d 598 [2014]). Here, the Supreme Court was not presentedwith extraordinary circumstances warranting the sua sponte dismissal of the complaint(see HSBC Bank USA, N.A. vSimmons, 125 AD3d 930, 932 [2015]; Onewest Bank, FSB v Fernandez, 112 AD3d 681, 682[2013]). Since the defendants Victor E. Prince and Bridget Claxton did not raise thedefense of lack of standing in their answers and did not make pre-answer motions todismiss the complaint on that ground, they waived the issue (see JPMorgan Chase Bank, N.A. vBauer, 92 AD3d 641, 642 [2012]; CitiMortgage, Inc. v Rosenthal, 88 AD3d 759, 761 [2011]).[*2]Moreover, a party's lack of standing does notconstitute a jurisdictional defect and does not warrant a sua sponte dismissal of thecomplaint by the court (see HSBC Bank USA, N.A. v Simmons, 125 AD3d at932; Wells Fargo Bank, N.A. vGioia, 114 AD3d 766, 767 [2014]; HSBC Bank USA, N.A. v Taher, 104 AD3d 815, 817[2013]; Bank of N.Y. vAlderazi, 99 AD3d 837, 838 [2012]; U.S. Bank, N.A. v Emmanuel, 83AD3d at 1048).
Moreover, the Supreme Court erred in denying that branch of the plaintiff'sunopposed motion which was for an order of reference and, in effect, denying thosebranches of the motion which were for summary judgment on the complaint, to strike theanswers of the defendants Victor E. Prince and Bridget Claxton, and for leave to amendthe caption. "Generally, a plaintiff in a mortgage foreclosure action is entitled tosummary judgment if it establishes the existence of a mortgage, an unpaid note, and thedefendant's default, and the defendant fails to raise a triable issue of fact in opposition"(PNC Bank, N.A. v Klein,125 AD3d 953, 954 [2015]; see NationStar Mtge., LLC v Silveri, 126 AD3d 864[2015]; Wachovia Bank, N.A. vCarcano, 106 AD3d 724, 725 [2013]; Swedbank, AB, N.Y. Branch v Hale Ave. Borrower, LLC, 89AD3d 922, 923 [2011]). Here, the plaintiff demonstrated its prima facie entitlementto judgment as a matter of law by producing the mortgage, unpaid note, and evidence ofdefault (see NationStar Mtge.,LLC v Silveri, 126 AD3d 864 [2015]). Since no opposition was filed, thedefendants failed to raise a triable issue of fact (see Citimortgage, Inc. v Chow Ming Tung, 126 AD3d 841[2015]; Flagstar Bank vBellafiore, 94 AD3d 1044, 1045 [2012]). Accordingly, the Supreme Courtshould have granted the motion (see NationStar Mtge., LLC v Silveri, 126 AD3d 864[2015]; Deutsche Bank Natl.Trust Co. v Islar, 122 AD3d 566, 567 [2014]; Flagstar Bank v Bellafiore, 94AD3d 1044, 1045 [2012]; HSBC Bank USA, NA v Schwartz, 88 AD3d 961, 961[2011]; Wells Fargo BankMinn., N.A. v Perez, 41 AD3d 590, 590 [2007]). Mastro, J.P., Chambers,Roman and LaSalle, JJ., concur.