| CitiMortgage, Inc. v Carter |
| 2016 NY Slip Op 04561 [140 AD3d 1663] |
| June 10, 2016 |
| Appellate Division, Fourth Department |
[*1]
| CitiMortgage, Inc., Appellant, v Kip C. Carter et al.,Respondents, et al., Defendants. |
Davidson Fink LLP, Rochester (Larry T. Powell of counsel), forplaintiff-appellant.
Appeal from an order and judgment (one paper) of the Supreme Court, OnondagaCounty (James P. Murphy, J.), entered June 18, 2014. The order and judgment dismissedthe complaint.
It is hereby ordered that the order and judgment so appealed from is unanimouslyreversed on the law without costs and the complaint is reinstated.
Memorandum: In this mortgage foreclosure action, plaintiff appeals from an orderand judgment, issued sua sponte, dismissing the complaint without prejudice based onplaintiff's failure to meet a single court-ordered deadline for filing a motion for ajudgment of foreclosure. We reverse. Supreme Court erred in dismissing the complaintsua sponte "inasmuch as '[u]se of the [sua sponte] power of dismissal must be restrictedto the most extraordinary circumstances' " (BAC Home Loans Servicing, LP v Maestri, 134 AD3d1593, 1593 [2015]), such as "a pattern of willful noncompliance with court-ordereddeadlines," and no such extraordinary circumstances are reflected in the record before us(Bank of Am., N.A. v Bah,95 AD3d 1150, 1152 [2012]; see NYCTL 2008-A Trust v Estate of Locksley Holas, 93 AD3d650, 651 [2012]; U.S.Bank, N.A. v Guichardo, 90 AD3d 1032, 1033 [2011]). "Although 'a litigantcannot ignore court orders with impunity' . . . , we conclude that missing asingle deadline by one week does not 'warrant the court's exercise of its power to dismissa complaint sua sponte' " (CitiMortgage, Inc. v Petragnani, 137 AD3d 1688, 1688[2016]). Present—Smith, J.P., Centra, DeJoseph, Curran and Scudder, JJ.