| Loancare v Carter |
| 2016 NY Slip Op 03718 [139 AD3d 817] |
| May 11, 2016 |
| Appellate Division, Second Department |
[*1]
| Loancare, a Division of FNF Servicing, Inc.,Appellant, v Antonia E. Carter et al., Defendants. |
Rosicki, Rosicki & Associates, P.C., Plainview, NY (Melissa S. Kubit andAndrew Morganstern 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 April 1, 2014, which denied itsunopposed motion for an order of reference, to deem the defendants in default, and toamend the caption, and, sua sponte, directed dismissal of the complaint, withoutprejudice, and cancellation of the notice of pendency filed against the subject realproperty.
Ordered that on the Court's own motion, the notice of appeal from so much of theorder as, sua sponte, directed dismissal of the complaint and cancellation of the notice ofpendency is deemed an application for leave to appeal from those portions of the order,and leave to appeal from those portions of the order is granted (see CPLR 5701[c]); and it is further,
Ordered that the order is reversed, on the law, without costs or disbursements, andthe plaintiff's motion for an order of reference, to deem the defendants in default, and toamend the caption is granted.
The Supreme Court improperly, sua sponte, directed dismissal of the complaint,without prejudice, and cancellation of the notice of pendency. "A court's power todismiss a complaint, sua sponte, is to be used sparingly and only when extraordinarycircumstances exist to warrant dismissal" (U.S. Bank, N.A. v Emmanuel, 83 AD3d 1047, 1048[2011]; see Deutsche Bank Natl.Trust Co. v Martin, 134 AD3d 665 [2015]; Nationstar Mtge., LLC v Wong, 132 AD3d 825 [2015]; FCDB FF1 2008-1 Trust vVidejus, 131 AD3d 1004 [2015]). Here, the Supreme Court was not presentedwith extraordinary circumstances warranting the sua sponte dismissal of the complaint(see Deutsche Bank Natl. Trust Co. v Martin, 134 AD3d at 665; NationstarMtge., LLC v Wong, 132 AD3d at 825; Onewest Bank, FSB v Prince, 130 AD3d 700, 701 [2015];U.S. Bank, N.A. v Emmanuel, 83 AD3d at 1048-1049).
Moreover, the Supreme Court erred in denying the plaintiff's unopposed motion. Theplaintiff demonstrated its entitlement to an order of reference by producing the mortgage,unpaid note, and evidence of default (see US Bank N.A. v Smith, 132 AD3d 848, 850 [2015]; Bank of N.Y. v Stein, 130AD3d 552, 552-553 [2015]; Wells Fargo Bank, NA v Ambrosov, 120 AD3d 1225, 1226[2014]). The plaintiff also submitted proof that none of the defendants had appeared oranswered the complaint (seeU.S. Bank N.A. v Gulley, 137 AD3d 1008 [2016]). Additionally, itdemonstrated that the caption should be amended (see CPLR 1024; Deutsche Bank Natl. Trust Co. vIslar, 122 AD3d 566, 568 [2014]). Rivera, J.P., Dillon, Balkin and Sgroi, JJ.,concur.