| BAC Home Loans Servicing, LP v Maestri |
| 2015 NY Slip Op 09777 [134 AD3d 1593] |
| December 31, 2015 |
| Appellate Division, Fourth Department |
[*1]
| BAC Home Loans Servicing, LP, Formerly Known asCountrywide Home Loans Servicing LP, Appellant, v Kenneth Maestri, AlsoKnown as Kenneth V. Maestri, Respondent. |
Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore (MichelleMaccagnano of counsel), for plaintiff-appellant.
Appeal from an order of the Supreme Court, Onondaga County (Deborah H.Karalunas, J.), entered January 3, 2014. The order denied the motion of plaintiff to vacatean order dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously reversed on thelaw without costs, the motion is granted, the order dated December 13, 2012 is vacatedand the complaint is reinstated.
Memorandum: In this mortgage foreclosure action, plaintiff appeals from an orderthat denied its motion seeking to vacate an order dated December 13, 2012, in whichSupreme Court sua sponte dismissed the complaint as abandoned pursuant to CPLR3215 (c). We agree with plaintiff that the court erred in denying the motion. The courterred in dismissing the complaint sua sponte inasmuch as "[u]se of the [sua sponte]power of dismissal must be restricted to the most extraordinary circumstances, and nosuch extraordinary circumstances are present in this case" (Midfirst Bank v Bellinger, 117AD3d 1520, 1522 [2014] [internal quotation marks omitted]; see HSBC Bank USA, N.A. vAlexander, 124 AD3d 838, 839 [2015]). Indeed, a plaintiff has not abandoned aforeclosure action where, as here, the plaintiff has taken the preliminary step towardobtaining a default judgment of foreclosure and sale by moving for an order of referencewithin one year of the defendant's default (see HSBC Bank USA, N.A., 124AD3d at 839; Klein v St.Cyprian Props., Inc., 100 AD3d 711, 712 [2012]). Present—Scudder,P.J., Smith, Centra, Peradotto and Carni, JJ.