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

• Docket Number: 2020–06367,Index No. 4119/09
• Decision Date: 19 April 2023
• Citation: 215 A.D.3d 889,188 N.Y.S.3d 536
• Parties: U.S. BANK NATIONAL ASSOCIATION, etc., appellant, v. Angeree J. TURNER, respondent, et al., defendants.
• Court: New York Supreme Court — Appellate Division

215 A.D.3d 889

188 N.Y.S.3d 536

U.S. BANK NATIONAL ASSOCIATION, etc., appellant,

v.Angeree J. TURNER, respondent, et al., defendants.

2020–06367

Index No. 4119/09

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

Argued—February 2, 2023

April 19, 2023

McCalla Raymer Leibert Pierce, LLC, New York, NY (Harold L. Kofman of counsel), for appellant.

Stephen H. Finkelstein, New York, NY, for respondent.

COLLEEN D. DUFFY, J.P., REINALDO E. RIVERA, LARA J. GENOVESI, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Martin J. Schulman, J.), entered May 26, 2020. The order denied the plaintiff's motion to vacate an order of the same court entered August 6, 2014, inter alia, sua sponte, directing dismissal of the complaint without prejudice, and to restore the action to the active calendar.

ORDERED that the order entered May 26, 2020, is reversed, on the law, without costs or disbursements, and the plaintiff's motion to vacate the order entered August 6, 2014, and to restore the action to the active calendar is granted.

In February 2009, the plaintiff's predecessor in interest commenced this action against the defendant Angeree J. Turner (hereinafter the defendant), among others, to foreclose a mortgage on certain real property located in Queens. The defendant failed to answer or otherwise appear.

After a status conference, the Supreme Court issued an order dated May 14, 2014, inter alia, directing the plaintiff to file an application for an order of reference by July 16, 2014, and warning that failure to comply with the terms of the order "may result in the dismissal of [the] action without prejudice." The plaintiff failed to file an application for an order of reference as directed by that order. In an order entered August 6, 2014, the court, among other things, sua sponte, directed dismissal of the complaint without prejudice.

In November 2019, the plaintiff moved to vacate the order entered August 6, 2014, and to restore the action to the active calendar. The defendant opposed the motion. In an order entered May 26, 2020, the Supreme Court denied the motion. The plaintiff appeals.

"A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal" ( U.S. Bank, N.A. v. Emmanuel, 83 A.D.3d 1047, 1048, 921 N.Y.S.2d 320 ; see Wachovia Bank, N.A. v. Cyril, 207 A.D.3d 686, 688, 172...