| Deutsche Bank Natl. Trust Co. v Rauf |
| 2016 NY Slip Op 03700 [139 AD3d 789] |
| May 11, 2016 |
| Appellate Division, Second Department |
[*1]
| Deutsche Bank National Trust Company, as Trustee forGSAA Equity Trust 2006-13, Appellant, v Mohammed A. Rauf et al.,Defendants. |
Gross Polowy, LLC (Reed Smith LLP, New York, NY [Andrew B. Messite andJoseph Teig], of counsel), for appellant.
Biolsi Law Group P.C., New York, NY (Steven Alexander Biolsi of counsel), fordefendant Mohammed A. Rauf.
In an action to foreclose a mortgage, the plaintiff appeals, by permission, from anorder of the Supreme Court, Queens County (Hart, J.), entered January 26, 2015, which,in effect, denied its unopposed motion to confirm a referee's report and for a judgment offoreclosure and sale and, sua sponte, directed the dismissal of the complaint withoutprejudice.
Ordered that the order is reversed, on the law, without costs or disbursements, andthe plaintiff's motion to confirm a referee's report and for a judgment of foreclosure ofsale is granted.
A plaintiff seeking a default judgment against a defendant must submit proof ofservice of the summons and complaint, proof of the facts constituting the claim, andproof of the defaulting defendant's failure to answer or appear (see CPLR 3215[f]; Deutsche Bank Natl. TrustCo. v Patrick, 136 AD3d 970 [2016]; Deutsche Bank Natl. Trust Co. v Kuldip, 136 AD3d 969[2016]; U.S. Bank N.A. vWolnerman, 135 AD3d 850 [2016]). Here, the plaintiff met that burden inconnection with its motion to confirm a referee's report and for a judgment of foreclosureand sale. The defendant mortgagor, who never appeared or answered, did not oppose thatmotion.
"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 U.S. Bank N.A. v Gulley, 137 AD3d 1008 [2016]).Here, there were no such extraordinary circumstances warranting dismissal of thecomplaint sua sponte. Moreover, the ground relied upon by the Supreme Court fordismissal—the supposedly defective subscribing of the complaint—waserroneous because the summons and complaint were in fact signed by counsel (see22 NYCRR 130-1.1a [a]).
Accordingly, the Supreme Court should have granted the plaintiff's motion toconfirm a referee's report and for a judgment of foreclosure and sale. Eng, P.J., Hall,Sgroi and Duffy, JJ., concur.