| Deutsche Bank Natl. Trust Co. v Ramharrack |
| 2016 NY Slip Op 03699 [139 AD3d 787] |
| May 11, 2016 |
| Appellate Division, Second Department |
[*1]
| Deutsche Bank National Trust Company, as Trustee forHSI Asset Securitization Corporation Trust 2006-HE2,Appellant-Respondent, v Samdai Ramharrack et al., Defendants, and Mrs. King,Also Known as Joanne King, Respondent-Appellant. |
Hogan Lovells US LLP, New York, NY (David Dunn, Chava Brandriss, and SeanMarotta of counsel), for appellant-respondent.
O. Benjamin Okeke, Brooklyn, NY, for respondent-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, Kings County (Martin, J.), dated October 8,2014, as, sua sponte, directed the dismissal of the complaint pursuant to Kings CountySupreme Court Uniform Civil Term Rules, part F, rule 8, and denied, as academic, itsmotion to vacate an order of reference of the same court (Balter, J.) dated April 1, 2009,and for a new order of reference, and the defendant Mrs. King, also known as JoanneKing, cross-appeals from so much of the order dated October 8, 2014, as denied, asacademic, her cross motion pursuant to CPLR 3211 (a) (3) to dismiss the complaint forlack of standing or, in the alternative, for leave to serve a late answer.
Ordered that on the Court's own motion, the plaintiff's notice of appeal from so muchof the order dated October 8, 2014, as, sua sponte, directed the dismissal of the complaintis deemed to be an application for leave to appeal from that portion of the order, andleave to appeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order dated October 8, 2014, is reversed insofar as appealed from,on the law, and the plaintiff's motion to vacate the order of reference dated April 1, 2009,and for a new order of reference is granted; and it is further,
Ordered that the order dated October 8, 2014, is affirmed insofar as cross-appealedfrom; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff commenced this action to foreclose a mortgage. Upon the defendants'default in answering the complaint, the Supreme Court issued an order of reference datedApril 1, 2009. A series of settlement conferences took place over the course of the nextyear, but they ultimately proved unsuccessful. Thereafter, to comply with the newlyimplemented Administrative Orders AO/548/10 and AO/431/11 of the ChiefAdministrative Judge of the Courts, the plaintiff's new [*2]counsel investigated and verified the underlying businessrecords and moved on or about April 12, 2013, to vacate the order of reference datedApril 1, 2009, and for a new order of reference. The defendant Mrs. King, also known asJoanne King, cross-moved pursuant to CPLR 3211 (a) (3) to dismiss the complaint forlack of standing or, in the alternative, for leave to serve a late answer.
In the order appealed and cross-appealed from, the Supreme Court, sua sponte,directed the dismissal of the complaint pursuant to Kings County Supreme CourtUniform Civil Term Rules, part F, rule 8, on the ground that the plaintiff had failed tomove for a judgment of foreclosure and sale within one year of the issuance of the orderof reference dated April 1, 2009. The court further denied the plaintiff's motion andKing's cross motion as academic in light of its sua sponte determination.
" '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. vMartin, 134 AD3d 665, 665 [2015], quoting U.S. Bank, N.A. v Emmanuel, 83 AD3d 1047, 1048[2011]). No such extraordinary circumstances were present in this case (see ChaseHome Fin., LLC v Kornitzer, 139 AD3d 784 [2016] [decided herewith]; U.S. Bank N.A. v Ahmed, 137 AD3d 1106, 1108 [2016];Deutsche Bank Natl. Trust Co. vMeah, 120 AD3d 465, 466 [2014]). Accordingly, the Supreme Court erred in,sua sponte, directing the dismissal of the complaint.
The Supreme Court should have granted the plaintiff's motion to vacate the order ofreference dated April 1, 2009, and for a new order of reference. The plaintiffdemonstrated its entitlement to this relief by establishing that it was unable to confirm,inter alia, that a proper review of the records had been undertaken by its previous counselwhen previous counsel made the motion for the initial order of reference, as required byAdministrative Orders AO/548/10 and AO/431/11 of the Chief Administrative Judge ofthe Courts (see U.S. Bank N.A. v Ahmed, 137 AD3d at 1108; Deutsche BankNatl. Trust Co. v Meah, 120 AD3d at 466; U.S. Bank N.A. v Eaddy, 109 AD3d 908, 909 [2013]).
The Supreme Court properly denied King's cross motion pursuant to CPLR 3211 (a)(3) to dismiss the complaint for lack of standing or, in the alternative, for leave to serve alate answer. The branch of the cross motion which was pursuant to CPLR 3211 (a) (3)was untimely, since it was made after the time to file an answer had expired (seeCPLR 3211 [e]; Archer vMotor Veh. Acc. Indem. Corp., 118 AD3d 5, 11 [2014]; Lema v New York Cent. Mut. FireIns. Co., 112 AD3d 891, 892 [2013]). Further, King failed to demonstrate areasonable excuse for her lengthy delay in seeking to answer the complaint (seeCPLR 3012 [d]; Citimortgage, Inc. v Kowalski, 130 AD3d 558 [2015]; Deutsche Bank Trust Co. Ams. vMarous, 127 AD3d 1012 [2015]). Mastro, J.P., Chambers, Dickerson andConnolly, JJ., concur.