Opinion
1424 CA 15-00517.
12-31-2015
BAC HOME LOANS SERVICING, LP, Formerly Known as Countrywide Home Loans Servicing LP, Plaintiff–Appellant, v. Kenneth MAESTRI, also Known as Kenneth V. Maestri, Defendant–Respondent.
Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore (Michelle Maccagnano of Counsel), for Plaintiff–Appellant.
Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore (Michelle Maccagnano of Counsel), for Plaintiff–Appellant.
Opinion
MEMORANDUM:
In this mortgage foreclosure action, plaintiff appeals from an order that denied its motion seeking to vacate an order dated December 13, 2012, in which Supreme Court sua sponte dismissed the complaint as abandoned pursuant to CPLR 3215(c). We agree with plaintiff that the court erred in denying the motion. The court erred in dismissing the complaint sua sponte inasmuch as “[u]se of the [sua sponte] power of dismissal must be restricted to the most extraordinary circumstances, and no such extraordinary circumstances are present in this case” (Midfirst Bank v. Bellinger, 117 A.D.3d 1520, 1522, 986 N.Y.S.2d 294 [internal quotation marks omitted]; see HSBC Bank USA, N.A. v. Alexander, 124 A.D.3d 838, 839, 4 N.Y.S.3d 47). Indeed, a plaintiff has not abandoned a foreclosure action where, as here, the plaintiff has taken the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference within one year of the defendant's default (see HSBC Bank USA, N.A., 124 A.D.3d at 839, 4 N.Y.S.3d 47; Klein v. St. Cyprian Props., Inc., 100 A.D.3d 711, 712, 954 N.Y.S.2d 170).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted, the order dated December 13, 2012 is vacated and the complaint is reinstated.
SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, and CARNI, JJ., concur.