Opinion
2014-01303, Index No. 26333/11.
09-16-2015
FCDB FF1 2008–1 Trust, appellant, v. Ivars VIDEJUS, respondent, et al., defendants.
Stim & Warmuth, P.C., Farmingville, N.Y. (Glenn P. Warmuth of counsel), for appellant.
Stim & Warmuth, P.C., Farmingville, N.Y. (Glenn P. Warmuth of counsel), for appellant.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, SYLVIA O. HINDS–RADIX, and BETSY BARROS, JJ.
Opinion In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Schack, J.), dated October 28, 2013, which denied its motion for, inter alia, an order of reference and, sua sponte, directed the dismissal of the complaint.
ORDERED that on the Court's own motion, the notice of appeal from so much of the order as, sua sponte, directed the dismissal of the complaint is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal from that portion 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, and the matter is remitted to the Supreme Court, Kings County, for a determination of the merits of the plaintiff's motion and for further proceedings on the complaint before a different Justice.
The Supreme Court abused its discretion in, sua sponte, directing the dismissal of the complaint for lack of standing. “A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” (HSBC Bank USA, N.A. v. Simmons, 125 A.D.3d 930, 931–932, 5 N.Y.S.3d 175 ; see HSBC Bank USA, N.A. v. Taher, 104 A.D.3d 815, 817, 962 N.Y.S.2d 301 ; U.S. Bank, N.A. v. Emmanuel, 83 A.D.3d 1047, 1048, 921 N.Y.S.2d 320 ). Here, the Supreme Court was not presented with extraordinary circumstances warranting the sua sponte dismissal of the complaint. Since the defendants, including Ivars Videjus, did not answer the complaint, and did not make a pre-answer motion to dismiss the complaint, they waived the defense of lack of standing (see Bank of N.Y. Mellon Trust Co. v. McCall, 116 A.D.3d 993, 985 N.Y.S.2d 255 ; HSBC Bank USA, N.A. v. Taher, 104 A.D.3d at 817, 962 N.Y.S.2d 301 ; Capital One N.A. v. Knollwood Props. II, LLC, 98 A.D.3d 707, 708, 950 N.Y.S.2d 482 ; Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d 239, 244, 837 N.Y.S.2d 247 ). Furthermore, a party's lack of standing does not constitute a jurisdictional defect and does not warrant sua sponte dismissal of a complaint (see HSBC Bank USA, N.A. v. Taher, 104 A.D.3d at 817, 962 N.Y.S.2d 301 ; Bank of N.Y. v. Alderazi, 99 A.D.3d 837, 838, 951 N.Y.S.2d 900 ; U.S. Bank, N.A. v. Emmanuel, 83 A.D.3d at 1048–1049, 921 N.Y.S.2d 320 ). Since Justice Arthur Schack continues to ignore this Court's precedent, as articulated in Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d at 240, 837 N.Y.S.2d 247, holding that the defense of lack of standing is waived if not raised by the defendant in an answer or pre-answer motion to dismiss (see U.S. Bank N.A. v. Flowers, 128 A.D.3d 951, 952–953, 11 N.Y.S.3d 186 ; HSBC Bank USA, N.A. v. Simmons, 125 A.D.3d at 932, 5 N.Y.S.3d 175 ; HSBC Bank USA, N.A. v. Forde, 124 A.D.3d 840, 842, 2 N.Y.S.3d 561 ; Deutsche Bank Natl. Trust Co. v. Islar, 122 A.D.3d 566, 568, 996 N.Y.S.2d 130 ; Bank of N.Y. v. Cepeda, 120 A.D.3d 451, 453, 989 N.Y.S.2d 910 ; Wells Fargo Bank, N.A. v. Gioia, 114 A.D.3d 766, 767, 980 N.Y.S.2d 535 ; HSBC Bank USA, N.A. v. Taher, 104 A.D.3d at 817–818, 962 N.Y.S.2d 301 ; U.S. Bank, N.A. v. Emmanuel, 83 A.D.3d at 1048–1049, 921 N.Y.S.2d 320 ), we deem it appropriate to remit the matter to the Supreme Court, Kings County, for a determination of the merits of the plaintiff's motion and further proceedings on the complaint before a different Justice.