Opinion
2015–08217 Index No. 2419/12
12-13-2017
ONEWEST BANK, FSB, appellant, v. Lillian TARANTOLA, also known as Lillian J. Tarantola, et al., defendants.
McCabe, Weisberg & Conway, P.C., New Rochelle, N.Y. (Mark Golab and Kiyam J. Poulson of counsel), for appellant.
McCabe, Weisberg & Conway, P.C., New Rochelle, N.Y. (Mark Golab and Kiyam J. Poulson of counsel), for appellant.
MARK C. DILLON, J.P., JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Putnam County (Grossman, J.), dated October 29, 2014, which, sua sponte, directed the dismissal of the complaint with prejudice and the cancellation of a notice of pendency filed against the subject property.
ORDERED that on the Court's own motion, the notice of appeal from the order is deemed to be an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c] ); and it is further,
ORDERED that the order is reversed, on the law, without costs or disbursements.
In this action to foreclose a mortgage, the Supreme Court, sua sponte, directed the dismissal of the complaint with prejudice and the cancellation of a notice of pendency filed against the subject property. "A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal" ( Onewest Bank, FSB v. Fernandez, 112 A.D.3d 681, 682, 976 N.Y.S.2d 405 [internal quotation marks omitted]; see HSBC Bank USA, N.A. v. Alexander, 124 A.D.3d 838, 839, 4 N.Y.S.3d 47 ; Deutsche Bank Natl. Trust Co. v Meah, 120 A.D.3d 465, 466, 991 N.Y.S.2d 92 ; Bank of N.Y. v. Cepeda, 120 A.D.3d 451, 452–453, 989 N.Y.S.2d 910 ). Here, there were no extraordinary circumstances warranting dismissal of the complaint with prejudice and the cancellation of the notice of pendency (see Aurora Loan Servs., LLC v. Sobanke, 101 A.D.3d 1065, 957 N.Y.S.2d 379 ; Bank of Am., N.A. v. Bah, 95 A.D.3d 1150, 1151–1152, 945 N.Y.S.2d 704 ; U.S. Bank, N.A. v. Guichardo, 90 A.D.3d 1032, 1033, 935 N.Y.S.2d 335 ). The plaintiff's delay in submitting an application for a judgment of foreclosure and sale was not a sufficient ground upon which to direct the dismissal of the complaint and cancellation of the notice of pendency (see U.S. Bank, N.A. v. Guichardo, 90 A.D.3d at 1033, 935 N.Y.S.2d 335 ; see also Citimortage, Inc. v. Carter, 140 A.D.3d 1663, 1664, 32 N.Y.S.3d 786 ; Citimortgage, Inc. v. Petragnani, 137 A.D.3d 1688, 1688, 27 N.Y.S.3d 780 ). Accordingly, the court erred in, sua sponte, directing the dismissal of the complaint with prejudice and the cancellation of the notice of pendency (see Aurora Loan Servs., LLC v.
Shahmela Shah Sookoo, 92 A.D.3d 705, 941 N.Y.S.2d 503 ; U.S. Bank, N.A. v. Emmanuel, 83 A.D.3d 1047, 1048, 921 N.Y.S.2d 320 ; HSBC Bank USA, N.A. v. Valentin, 72 A.D.3d 1027, 900 N.Y.S.2d 350 ).
DILLON, J.P., COHEN, CONNOLLY and CHRISTOPHER, JJ., concur.