U.S. Bank Nat'l Ass'n v. Flowers

• Decision Date: 20 May 2015
• Docket Number: 2014-09048
• Citation: 128 A.D.3d 951,2015 N.Y. Slip Op. 04308,11 N.Y.S.3d 186
• Parties: U.S. BANK NATIONAL ASSOCIATION, appellant, v. Kawan D. FLOWERS, et al., respondents.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 951

11 N.Y.S.3d 186

2015 N.Y. Slip Op. 04308

U.S. BANK NATIONAL ASSOCIATION, appellant

v.Kawan D. FLOWERS, et al., respondents.

2014-09048

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

May 20, 2015.

Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (LiJue T. Philip and Andrew Morganstern of counsel), for appellant.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.

Opinion

In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Schack, J.), dated February 24, 2014, as (a) denied that branch of its motion which was pursuant to RPAPL 1321 for an order of reference and (b), sua sponte, directed the dismissal of the complaint without 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 so much of the order as, sua sponte, directed the dismissal of the complaint and the cancellation of the notice of pendency is deemed to be an application for leave to appeal from those portions of the order, and leave to appeal from those portions of the order is granted (see CPLR 5701[c] ); and it is further,

ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, that branch of the plaintiff's motion which was pursuant to RPAPL 1321 for an order of reference is granted, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith before a different Justice.

The Supreme Court erred in denying that branch of the plaintiff's motion which was pursuant to RPAPL 1321 for an order of reference. In support of its unopposed motion, the plaintiff submitted documentary proof showing, inter alia, that the defendants failed to answer the complaint within the time allowed, that it was the holder of the mortgage and note, that the mortgagor defaulted thereon, and that, as a preliminary step in obtaining a judgment of foreclosure, the appointment of a referee to compute the amount due on the mortgage would be proper (see RPAPL 1321 ; HSBC Bank USA, N.A. v. Taher, 104 A.D.3d 815, 816, 962 N.Y.S.2d 301 ; Bank of N.Y. v. Alderazi, 99 A.D.3d 837, 837–838, 951 N.Y.S.2d 900 ; Aurora Loan Servs., LLC v. Shahmela Shah Sookoo, 92 A.D.3d 705, 707, 941 N.Y.S.2d 503 ; Emigrant Mtge. Co., Inc. v. Fisher, 90 A.D.3d 823, 824, 935 N.Y.S.2d 313 ).

Moreover, the Supreme Court erred in, sua sponte, directing the dismissal of the complaint and the cancellation of the notice of pendency filed against the subject property 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. Taher, 104 A.D.3d at 817, 962 N.Y.S.2d 301, quoting U.S. Bank, N.A. v. Emmanuel, 83 A.D.3d 1047, 1048, 921 N.Y.S.2d 320 ; see Aurora Loan Servs., LLC v. Sobanke, 101 A.D.3d 1065, 1066, 957 N.Y.S.2d 379 ). Here, the Supreme Court was not presented with extraordinary circumstances warranting the sua sponte dismissal of the complaint and the cancellation of the notice of pendency. Since the defendants did not answer the complaint and did not make pre-answer motions to dismiss the complaint, they waived the defense of lack of standing (see JP Morgan Mtge. Acquisition Corp. v. Hayles, 113 A.D.3d 821, 979 N.Y.S.2d 620 ; Freedom Mtge. Corp. v. Toro, 113 A.D.3d 815, 979 N.Y.S.2d 622 ; 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 at 838, 951 N.Y.S.2d 900 ; CitiMortgage, Inc. v. Rosenthal, 88 A.D.3d 759, 761, 931 N.Y.S.2d 638 ; Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d 239, 242, 837 N.Y.S.2d 247 ). In any event, a party's lack of standing does not constitute a jurisdictional defect and does not warrant...