| Wells Fargo Bank, N.A. v Watanabe |
| 2016 NY Slip Op 01096 [136 AD3d 1413] |
| February 11, 2016 |
| Appellate Division, Fourth Department |
[*1]
| Wells Fargo Bank, N.A., Appellant, v MakotoWatanabe et al., Respondents, et al., Defendants. |
Woods Oviatt Gilman LLP, Rochester (Katerina M. Kramarchyk of counsel), forplaintiff-appellant.
Appeal from an order of the Supreme Court, Onondaga County (Anthony J. Paris,J.), entered August 27, 2013. The order, inter alia, denied that part of the motion ofplaintiff seeking to substitute an affidavit of merit and amount due and dismissed thecomplaint.
It is hereby ordered that the order so appealed from is unanimously modified on thelaw by granting that part of the motion to substitute, nunc pro tunc, a newly signedaffidavit of merit and amount due in place of the affidavit of merit and amount due thatwas attached to plaintiff's initial application for an order of reference, and reinstating thecomplaint, and as modified the order is affirmed without costs.
Memorandum: In this mortgage foreclosure action, plaintiff appeals from an orderthat denied that part of its motion seeking to substitute an affidavit of merit and amountdue, and dismissed the complaint. Plaintiff obtained a judgment of foreclosure and saleon the subject residential property in November 2008. Subsequent to entry of thejudgment of foreclosure and sale, but before the subject property was sold, the ChiefAdministrative Judge of the Courts issued Administrative Order AO/548/10 on October20, 2010, which has since been amended by Administrative Order AO/431/11 (hereafter,Administrative Order). The Administrative Order requires a plaintiff's attorney in aresidential mortgage foreclosure action to file an affirmation indicating that he or shecommunicated with a representative of the plaintiff, and that the representative informedthe attorney that "he/she/they (a) personally reviewed [the] plaintiff's documents andrecords relating to [the] case for factual accuracy; and (b) confirmed the factual accuracyof the allegations set forth in the [c]omplaint and any supporting affidavits oraffirmations filed with the [c]ourt, as well as the accuracy of the notarizations containedin the supporting documents filed therewith." The filing of such attorney affirmation ismandatory (see U.S. Bank N.A.v Eaddy, 109 AD3d 908, 909 [2013]; LaSalle Bank, NA v Pace, 100 AD3d 970, 970-971[2012]). Plaintiff had to replace its prior counsel with a new law firm in December 2011.Plaintiff's new attorneys were advised by plaintiff that it could not "confirm the properexecution and/or notarizations" of the affidavit of merit and amount due that wasattached to plaintiff's initial application to Supreme Court for an order of reference.Plaintiff was able, however, to verify that the amount and allegations set forth were trueand accurate, and thus plaintiff's new attorneys moved to substitute, nunc pro tunc, theoriginal affidavit of merit and amount due with a new, substantively identical affidavit ofmerit and amount due, the execution and notarization of which could be confirmed asaccurate by plaintiff as required by the Administrative Order. We agree with plaintiff thatthe court erred in denying its motion and in dismissing the complaint sua sponte, and wetherefore modify the order accordingly.
" 'A court's power to dismiss a complaint, sua sponte, is to be used sparinglyand only when extraordinary circumstances exist to warrant dismissal' " (Deutsche Bank Natl. Trust Co. vMeah, 120 AD3d 465, 466 [2014]). Here, we conclude that "[t]he fact that. . . plaintiff's [new] attorney[s] attempted to comply, in good faith, with anAdministrative Order of the Chief [*2]AdministrativeJudge that did not exist at the time that the action was commenced, or at the time [thejudgment of foreclosure and sale was granted], does not qualify as such an 'extraordinarycircumstance' " that would support a sua sponte dismissal (id.). Indeed,"[n]othing in the Administrative Order[ ] requires the dismissal of an action merelybecause the plaintiff's attorney[s] discover[ ] that there was some irregularity or defect ina prior submission" (id.). Thus, contrary to the court's determination, we concludethat plaintiff is not "effectively required to commence an entirely new action"(id.).
We further conclude that the court erred in denying that part of plaintiff's motionseeking to substitute the affidavit of merit and amount due. "CPLR 2001 permits a court,at any stage of an action, to disregard a party's mistake, omission, defect, or irregularity ifa substantial right of a party is not prejudiced" (Eaddy, 109 AD3d at 910; seeMatter of Tagliaferri v Weiler, 1 NY3d 605, 606 [2004]). In addition, "[p]ursuant toCPLR 5019 (a), a trial court has the discretion to correct an order or judgment whichcontains a mistake, defect, or irregularity not affecting a substantial right of a party"(Eaddy, 109 AD3d at 910 [internal quotation marks omitted]; see Page v Page, 39 AD3d1204, 1205 [2007]). Here, we conclude that the substitution of the original affidavitof merit and amount due with a new, substantively identical affidavit of merit andamount due was a ministerial amendment permitted by CPLR 2001 and CPLR 5019 (a)inasmuch as the change affected only plaintiff's ability to comply with the AdministrativeOrder, and "[t]he attorney affirmation is not itself substantive evidence" (LaSalle,100 AD3d at 971; see generally Eaddy, 109 AD3d at 910). We further concludethat "[n]o substantial right of [defendant Makoto Watanabe would] be affected by thecourt's substitution" (Eaddy, 109 AD3d at 910). Indeed, that defendant did notreside in the subject property when plaintiff commenced the mortgage foreclosure actionand the property was vacant at that time, and he never joined this action nor made anyeffort to contest the foreclosure. Present—Smith, J.P., Peradotto, Carni, Lindleyand Whalen, JJ.