Bank of N.Y. v. Alderazi

• Decision Date: 17 October 2012
• Citation: Bank of N.Y. v. Alderazi, 99 A.D.3d 837, 951 N.Y.S.2d 900, 2012 N.Y. Slip Op. 6906 (N.Y. App. Div. 2012)
• Parties: BANK OF NEW YORK, etc., appellant, v. Sameeh ALDERAZI, et al., defendants.
• Court: New York Supreme Court — Appellate Division

99 A.D.3d 837

951 N.Y.S.2d 900

2012 N.Y. Slip Op. 06906

BANK OF NEW YORK, etc., appellant,

v.Sameeh ALDERAZI, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 17, 2012.

OPINION TEXT STARTS HEREHiscock & Barclay, LLP, Buffalo, N.Y. (Charles C. Martorana of counsel), for appellant.

In an action to foreclose a mortgage, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Saitta, J.), dated April 19, 2010, which denied that branch of its ex parte motion which was pursuant to RPAPL 1321 for an order of reference, and (2) an order of the same court dated April 7, 2011, which denied its renewed motion pursuant to RPAPL 1321 for an order of reference and, sua sponte, directed dismissal of the complaint.

ORDERED that on the Court's own motion, the appeal from the order dated April 19, 2010, is dismissed, without costs or disbursements, as no appeal lies from the denial of an ex parte application ( see CPLR 5704; Voyticky v. Gore, 134 A.D.2d 354, 520 N.Y.S.2d 832); and it is further,

ORDERED that on the Court's own motion, the notice of appeal from so much of the order dated April 7, 2011, as, sua sponte, directed dismissal of the complaint, is deemed an application for leave to appeal from that portion of the order, and leave to appeal is granted ( seeCPLR 5701[c] ); and it is further,

ORDERED that the order dated April 7, 2011, is reversed, on the law and in the exercise of discretion, and the plaintiff's renewed motion pursuant to RPAPL 1321 for an order of reference is granted, without costs or disbursements.

The Supreme Court improvidently exercised its discretion in denying the plaintiff's renewed motion pursuant to RPAPL 1321 for an order of reference. The defendants failed to answer the complaint within the time allowed, and the plaintiff submitted, in support of its renewed motion, the mortgage, the note, the verified complaint setting forth the facts establishing the claim, and evidence of the mortgagor's default ( see Emigrant Mtge. Co., Inc. v. Fisher, 90 A.D.3d 823, 824, 935 N.Y.S.2d 313;RPAPL 1321). Under these circumstances, the Supreme Court should have granted the plaintiff's renewed motion for an order of reference.

The Supreme Court improvidently exercised its discretion in, sua sponte, directing the dismissal of the complaint. Since the defendants failed to answer the complaint and did not make pre-answer motions to dismiss the complaint, they waived the defense of lack of standing (...