| CitiMortgage, Inc. v Petragnani |
| 2016 NY Slip Op 02218 [137 AD3d 1688] |
| March 25, 2016 |
| Appellate Division, Fourth Department |
[*1]
| CitiMortgage, Inc., Appellant, v Jessica L. Petragnani,Respondent, et al., Defendants. |
Davidson Fink LLP, Rochester (William A. Santmyer of counsel), forplaintiff-appellant.
Appeal from an order and judgment (one paper) of the Supreme Court, OnondagaCounty (James P. Murphy, J.), entered June 26, 2014. The order and judgment denied themotion of plaintiff to vacate an order and judgment of dismissal.
It is hereby ordered that the order and judgment so appealed from is unanimouslyreversed on the law without costs, the motion is granted, the order and judgment enteredFebruary 25, 2014 is vacated, and the complaint is reinstated.
Memorandum: In this mortgage foreclosure action, plaintiff appeals from an orderand judgment that denied its motion seeking to vacate an order and judgment enteredFebruary 25, 2014, in which Supreme Court sua sponte dismissed the complaint afterplaintiff missed by one week a deadline set forth in a scheduling order to file anapplication for an order of reference. We agree with plaintiff that the court erred indenying the motion. "The court erred in dismissing the complaint sua sponte inasmuch as'[u]se of the [sua sponte] power of dismissal must be restricted to the most extraordinarycircumstances, and no such extraordinary circumstances are present in this case' "(BAC Home Loans Servicing,LP v Maestri, 134 AD3d 1593, 1593 [2015]). Although "a litigant cannot ignorecourt orders with impunity" (Kihl v Pfeffer, 94 NY2d 118, 123 [1999]), weconclude that missing a single deadline by one week does not "warrant the court'sexercise of its power to dismiss a complaint sua sponte" (MidFirst Bank v Eddy, 125AD3d 1458, 1459 [2015]; cf. Andrea v Arnone, Hedin, Casker, Kennedy & Drake,Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514,521 [2005]). Present—Carni, J.P., Lindley, DeJoseph, Nemoyer and Troutman,JJ.