| Consumer Solutions, LLC v Charles |
| 2016 NY Slip Op 01794 [137 AD3d 952] |
| March 16, 2016 |
| Appellate Division, Second Department |
[*1]
| Consumer Solutions, LLC, Appellant, v JeremyCharles et al., Defendants. |
Sheldon May & Associates, P.C., Farmingville, NY (Stim & Warmuth,P.C. [Glenn Warmuth], of counsel), for appellant.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Kings County (Schack, J.), dated January 13, 2014, which denied itsunopposed motion to confirm a referee's report and for a judgment of foreclosure andsale, and, sua sponte, directed vacatur of the order of reference, dismissal of thecomplaint, and discharge of the notice of pendency.
Ordered that on the Court's own motion, the notice of appeal from so much of theorder as, sua sponte, directed vacatur of the order of reference, dismissal of thecomplaint, and discharge of the notice of pendency is deemed to be an application forleave to appeal from those portions 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 matter is remitted to the Supreme Court, Kings County, for a new determination onthe plaintiff's motion, and further proceedings consistent herewith, before a differentJustice.
The Supreme Court erred in, sua sponte, directing the dismissal of the plaintiff'scomplaint and discharge of the notice of pendency against the subject property for lackof standing. "A court's power to dismiss a complaint, sua sponte, is to be used sparinglyand only when extraordinary circumstances exist to warrant dismissal" (U.S. Bank, N.A. v Emmanuel,83 AD3d 1047, 1048 [2011]). Here, the Supreme Court was not presented with anyextraordinary circumstances warranting sua sponte dismissal of the complaint anddischarge of the notice of pendency. Since the defendants did not answer the complaintand did not make pre-answer motions to dismiss the complaint, they waived the defenseof lack of standing (see HSBCBank USA, N.A. v Forde, 124 AD3d 840, 841 [2015]; Bank of N.Y. v Cepeda, 120AD3d 451, 453 [2014]; HSBC Bank USA, N.A. v Taher, 104 AD3d 815, 817[2013]). Furthermore, a party's lack of standing does not constitute a jurisdictional defectand does not warrant sua sponte dismissal of a complaint by the court (see HSBC Bank USA, N.A. vSimmons, 125 AD3d 930, 932 [2015]; U.S. Bank, N.A. v Emmanuel, 83AD3d at 1048).
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 US Bank N.A. vFlowers, 128 AD3d 951 [2015]; Deutsche Bank Natl. Trust Co. v Islar, 122 AD3d 566[2014]; [*2]HSBC Bank USA, N.A. v Taher, 104AD3d at 817; U.S. Bank, N.A. v Emmanuel, 83 AD3d at 1048), we deem itappropriate to remit the matter to the Supreme Court, Kings County, for a newdetermination of the plaintiff's motion to confirm a referee's report and for a judgment offoreclosure and sale, and for further proceedings consistent herewith, before a differentJustice. Rivera, J.P., Leventhal, Austin and Hinds-Radix, JJ., concur.