| Wachovia Bank, N.A. v Akojenu |
| 2016 NY Slip Op 03166 [138 AD3d 1112] |
| April 27, 2016 |
| Appellate Division, Second Department |
[*1]
| Wachovia Bank, N.A., as Trustee, Polling and ServicingAgreement Dated as of November 1, 2004 Asset Backed Pass Through CertificatesSeries 2004-WWF1, C/o America's Servicing Company, 3476 Stateview Boulevard, Ft.Mill, SC 29715, Appellant, v Elizabeth Akojenu et al.,Defendants. |
Woods Oviatt Gilman LLP, Rochester, NY (Michael Jablonski and KaterinaKramarchyk of counsel), for appellant.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, fromso much of an order of the Supreme Court, Queens County (Brathwaite Nelson, J.),entered August 27, 2013, as, upon granting those branches of its unopposed motionwhich were to vacate an order of reference of the same court entered July 24, 2007, and ajudgment of foreclosure and sale of the same court entered August 6, 2008, and upon, ineffect, denying, as academic, those branches of its motion which were for leave to serve asupplemental summons and amended complaint, to amend the caption, and to deem alldefendants who had failed to appear or answer in default, sua sponte, directed thedismissal of the complaint and the cancellation of a notice of pendency filed against thesubject property.
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 and the cancellation of anotice of pendency filed against the subject property is deemed to be an application forleave to appeal from those portions of the order, and leave to appeal is granted(see CPLR 5701 [c]); and it is further,
Ordered that the order is reversed insofar as appealed from, on the law and in theexercise of discretion, without costs or disbursements, and the matter is remitted to theSupreme Court, Queens County, for further proceedings consistent herewith.
In this mortgage foreclosure action, the plaintiff procured an order of referenceentered July 24, 2007, and a judgment of foreclosure and sale entered August 6, 2008,after its unopposed motions for such relief were granted. Subsequently, there werevarious delays in the sale of the subject premises, which were not attributable to theplaintiff. While the case was still pending, the Chief Administrative Judge of the Courtsissued Administrative Orders AO/548/10 and AO/431/11 (hereinafter the AdministrativeOrders) requiring, inter alia, the filing of an affirmation confirming the factual accuracyand the accuracy of notarizations of all filings in support of foreclosure. The plaintiffsubsequently retained new counsel, who conducted a review of the case and determinedthat the plaintiff was unable to submit an affirmation in compliance with theAdministrative Orders. Accordingly, the plaintiff moved to vacate the aforementionedorder of reference and judgment of foreclosure and sale, and also sought leave to makecertain amendments to the caption of the action, to serve a supplemental summons andamended complaint, and to deem all defendants who had failed to appear or answer indefault. In the order appealed from, the Supreme Court, upon granting those branches ofthe motion which were to vacate the order of reference and the judgment of [*2]foreclosure and sale, and, in effect, denying, as academic,those branches of the motion which were for leave to serve a supplemental summons andamended complaint, to amend the caption, and to deem all defendants who had failed toappear or answer in default, sua sponte, directed the dismissal of the complaint and thecancellation of a notice of pendency filed against the subject property. The plaintiff seeksreview of the sua sponte portions of the order.
"A court's power to dismiss a complaint, sua sponte, is to be used sparingly and onlywhen extraordinary circumstances exist to warrant dismissal" (U.S. Bank, N.A. v Emmanuel,83 AD3d 1047, 1048 [2011]; see HSBC Bank USA, N.A. v Alexander, 124 AD3d 838[2015]; Bank of N.Y. vCastillo, 120 AD3d 598 [2014]; U.S. Bank, N.A. v Razon, 115 AD3d 739 [2014]). Here,the fact that the plaintiff's counsel attempted to comply, in good faith, with theAdministrative Orders, which did not exist at the time of the commencement of theaction, or at the time of the plaintiff's prior motions for an order of reference and ajudgment of foreclosure and sale, does not qualify as such an extraordinary circumstance.Nothing in the Administrative Orders requires the dismissal of an action merely becausethe plaintiff's counsel discovers that there was some irregularity or defect in a priorsubmission, nor is the plaintiff effectively required to commence an entirely new action(see Deutsche Bank Natl. TrustCo. v Meah, 120 AD3d 465, 466 [2014]; see generally U.S. Bank N.A. v Eaddy, 109 AD3d 908[2013]). Accordingly, the portions of the order sua sponte directing the dismissal of thecomplaint and the cancellation of the notice of pendency must be reversed, and the matteris remitted to the Supreme Court, Queens County, inter alia, for a determination on themerits of those branches of the plaintiff's motion which were for leave to serve asupplemental summons and amended complaint, to amend the caption, and to deem alldefendants who had failed to appear or answer in default. Mastro, J.P., Leventhal, Sgroiand Miller, JJ., concur.