Myung Chun v. N. AM MTGE. CO.

• Decision Date: 30 August 2001
• Citation: 729 N.Y.S.2d 716,285 A.D.2d 42
• Court: New York Supreme Court — Appellate Division
• Parties: MYUNG CHUN, Appellant,<BR>v.<BR>NORTH AMERICAN MORTGAGE CO. et al., Respondents.

285 A.D.2d 42

729 N.Y.S.2d 716

MYUNG CHUN, Appellant,

v.NORTH AMERICAN MORTGAGE CO. et al., Respondents.

WALLACH, J.

August 30, 2001.

Herbert Monte Levy for appellant.

Jennifer A. Mulvanerty of counsel (James G. Ryan on the brief; Cullen & Dykman, attorneys), for North American Mortgage Co., respondent.

Charles A. Termini of counsel (Jon B. Felice & Associates, P. C., attorneys), for Homecoming Financial Network, respondent.

Richard T. Walsh of counsel (Denise M. Campbell on the brief; Rosen & Livingston, attorneys), for East River Tenants Corp., respondent.

Geraldene Sherr Duswalt for Lorraine Skeen, respondent.

OPINION OF THE COURT

WALLACH, J.

If you ask the very model of a modern court administrator what stands high on the list of priorities, you will find at the top the speedy dispatch of matters pending on the calendar. This case on appeal fully satisfies that important criterion. However, because its disposition lacks most of the other attributes of due process, we are compelled to reverse the outcome and remand the matter for further proceedings.

The facts are substantially undisputed. Plaintiff purchased for $150,000 a cooperative apartment at 200 East End Avenue in Manhattan, with financing secured by a mortgage from the Dime Savings Bank. The mortgage was thereafter assigned to defendant North American Mortgage Co. When plaintiff defaulted on her mortgage payments, North American commenced a foreclosure proceeding. On January 20, 1999, prior to foreclosure, plaintiff and North American entered into a forbearance agreement in which plaintiff acknowledged her arrears for the last eight months of 1998, and North American agreed not to exercise its foreclosure rights and remedies as long as plaintiff abided by the terms of the agreement (i.e., immediate resumption of mortgage payments, plus payoff of the arrears by a down payment and monthly payments through January 2000), with no "event of default," as defined in the agreement and loan documents. All payments were required to be made by bank or certified check. North American thereafter sold the mortgage to defendant Homecomings Financial Network.

At the same time, plaintiff was behind in her maintenance payments to the co-op. Defendant East River Tenants Corp. had commenced a summary nonpayment proceeding against plaintiff in Civil Court, New York County, which culminated in a stipulation of settlement in May 1999, requiring her to cure her arrears and resume timely maintenance payments, or sell the apartment within six months.

Plaintiff allegedly defaulted on her payments under both the forbearance agreement and the maintenance contract. Homecomings foreclosed on the apartment by auctioning the stock and proprietary lease. At the foreclosure sale in October 1999, the successful bidder was defendant Skeen. The closing took place in December, and East River's claim for maintenance arrears was satisfied from the proceeds.

Plaintiff commenced this action to vacate the foreclosure sale by show cause order in February 2000, alleging that she had made the required payments under the forbearance agreement. In support, plaintiff submitted copies of checks and receipts dated through November 1999, but which were not uniformly dated on any particular day of the month. Skeen states that she was not individually served with plaintiff's summons and complaint, which are dated January 20, 2000.

Because of the short return date on the order to show cause, none of the defendants served any papers in opposition. East River states in its brief that plaintiff's prior counsel had agreed to an adjournment to allow defendants to prepare opposition papers, but the court refused to adjourn the motion for this or any other purpose. All parties participated in oral argument based solely upon the papers and exhibits presented by plaintiff.

In a short form order dated February 20, 2000, the IAS court stated simply that plaintiff's evidence showed she was in default in complying with the forbearance agreement, and dismissed the proceeding. We reverse.

The record, consisting only of plaintiff's moving papers, fails to support the court's summary resolution. Entirely overlooked was plaintiff's sworn assertion that she had timely made the mortgage payments for October and November 1999, but that those checks were held by Homecomings until after the foreclosure in October, and only then returned to her uncashed. While neither draft was a bank or certified check, as the agreement required, their retention by the payee until after the foreclosure gives rise to a claim of waiver of this condition, and a possible inference of default not by plaintiff but contrived by defendant Homecomings.

The only other event of default urged by defendants is plaintiff's alleged failure to maintain current maintenance payments to East River pursuant to the stipulation resolving the nonpayment proceeding in Civil Court. That stipulation not only provided an enumeration of plaintiff's maintenance payment obligations, but also granted her six months to effect a sale of the apartment. Nothing in the truncated record before us indicates that East River ever sought to hold plaintiff in default of those stipulated payments and to recover possession of the premises and a money judgment pursuant to that stipulation.

Defendants attempt to justify the disposition on appeal as a proper exercise of the court's power to dismiss an action sua sponte, based on the facial lack of merits of a pleading. The difficulty with this argument is that the court itself never invoked that power, instead basing its decision on "the evidence provided" (emphasis added). The court was without power to grant summary judgment before joinder of issue on plaintiff's complaint (State Univ. Constr. Fund v Aetna Cas. & Sur. Co., 169 AD2d 52; Republic Natl. Bank v Luis Winston, Inc., 107 AD2d 581). Even were there no triable issue, summary judgment could not be granted prior to joinder of issue (Milk v Gottschalk, 29 AD2d 698).

A serious aspect of due process overlooked by the IAS court was the absence of a notice of cross motion or any other notice to plaintiff that she would be required to respond to a motion to dismiss. Under these circumstances the court was virtually without jurisdiction to grant the relief afforded to defendants (Matter of Briger, 95 AD2d 887, 888; Guggenheim v Guggenheim, 109 AD2d 1012).

The cases cited by defendants are distinguishable. In Macias v New York City Tr. Auth. (240 AD2d 196) we upheld a court's sua sponte dismissal of a 10-year-old personal injury action where the plaintiff had willfully defied an order to appear for a deposition and her attorney had done nothing to reinstate himself after an eight-month-old order relieving him at his own request. In Waterman v Waterman (128 Misc 2d 665), the plaintiff wife in a divorce action moved for interim appraisal fees. The court held that the predicate for imposing such a financial burden upon the defendant husband would be a validly stated cause of action for (in this instance) cruel and inhuman treatment. Finding the claim before it deficient as a matter of law, the court dismissed the complaint sua sponte, with leave to replead. This 16-year-old decision has been cited only by way of criticism (see, e.g., Metz v Duenas, 183 Misc 2d 751, 753), mostly notably and bitterly in Davis v Davis (138 Misc 2d 970, 975-976, affd 144 AD2d 621). Obviously the willful default of both the plaintiff and counsel in Macias, and the interim relief granted in Waterman, bear no relationship to the events preceding the final dismissal in this case.

This Court had recent occasion to exercise sua sponte dismissal authority under extreme circumstances. In Wehringer v Brannigan (232 AD2d 206, appeal dismissed 89 NY2d 980), we dismissed sua sponte an action by a disbarred attorney to recover legal fees based upon the same egregious activities that had brought about his disbarment (in Matter of Wehringer, 135 AD2d 279, appeal dismissed 72 NY2d 874, appeal dismissed and cert denied 488 US 988), holding that the claim for legal fees "flouts the integrity of [the prior] order of this Court" (232 AD2d, at 207). We invoke Wehringer to emphasize that use of the sua sponte power of dismissal must be restricted to the most extraordinary circumstances. Nothing in the action at bar warranted such recourse.

Finally, we consider unwarranted the dissent's criticism of plaintiff for failing to refer to her motion for reargument. No appeal lies from denial of a motion for reargument (Iocovello v City of New York, 272 AD2d 201, lv dismissed 95 NY2d 879). Furthermore, we also reject the dissent's complete acceptance of the claims advanced in defendants' briefs that in the course of the "lengthy" oral argument heard by the court, plaintiff conceded away her entire case. Suffice it to say, nothing in this record supports such a one-sided reconstruction of what actually occurred.

Accordingly, the order of Supreme Court, New York County (Walter Tolub, J.), entered on or about March 1, 2000, which dismissed plaintiff's action seeking to vacate the judgment of foreclosure and denied her application for a stay in an eviction proceeding before the Civil Court, should be reversed, on the law, without costs, and the matter remanded for further proceedings consistent herewith.

TOM, J. (dissenting).

I conclude, based on my review of the record, that plaintiff's own complaint, when considered in the light of her supporting papers and exhibits, fails to support her claim that she was in compliance with the Forbearance Agreement. Hence, the motion court had an adequate basis to deny plaintiff's order to show cause to vacate the foreclosure and stay her eviction. Remanding at this late stage solely for the sake of procedural niceties, when plaintiff's own papers fail to make out a prima facie case for entitlement to relief, unduly elevates form over substance. Accordingly, I respectfully dissent.

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