U.S. Bank v. Razon

• Decision Date: 12 March 2014
• Parties: U.S. BANK, NATIONAL ASSOCIATION, etc., appellant, v. Carissa RAZON, et al., defendants.
• Court: New York Supreme Court — Appellate Division

115 A.D.3d 739

981 N.Y.S.2d 571

2014 N.Y. Slip Op. 01602

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

v.Carissa RAZON, et al., defendants.

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

March 12, 2014.

OPINION TEXT STARTS HERERosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Kenneth Sheehan of counsel), for appellant.

In an action, inter alia, to cancel and vacate two satisfactions of mortgage recorded on November 16, 2010, and January 7, 2011, respectively, and to reinstate a mortgage recorded on January 18, 2007, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Pfau, J.), dated July 9, 2012, as denied its unopposed motion, in effect, pursuant to CPLR 3215, for leave to enter a judgment against the defendants canceling and vacating the satisfactions of mortgage recorded on November 16, 2010, and January 7, 2011, respectively, and reinstating the mortgage recorded on January 18, 2007, upon the defendants' failure to appear or answer and, by permission, from so much of the same order as, sua sponte, directed dismissal of the complaint and cancellation of the notice of pendency filed against the subject property.

ORDERED that the order is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, without costs or disbursements, and the plaintiff's motion, in effect, pursuant to CPLR 3215, for leave to enter a judgment against the defendants canceling and vacating the satisfactions of mortgage recorded on November 16, 2010, and January 7, 2011, respectively, and reinstating the mortgage recorded on January 18, 2007, upon the defendants' failure to appear or answer, is granted.

The Supreme Court improvidently exercised its discretion in, sua sponte, directing dismissal of the complaint and cancellation of the 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. Taher, 104 A.D.3d 815, 817, 962 N.Y.S.2d 301;Aurora Loan Servs., LLC v. Sobanke, 101 A.D.3d 1065, 1066, 957 N.Y.S.2d 379;U.S. Bank, N.A. v. Emmanuel, 83 A.D.3d 1047, 1048, 921 N.Y.S.2d 320). Here, there were no extraordinary circumstances warranting dismissal of the complaint and cancellation of the notice of pendency ( see HSBC Bank USA, N.A. v. Taher, 104 A.D.3d at 817, 962 N.Y.S.2d 301;Aurora Loan Servs., LLC. v. Sobanke, 101 A.D.3d at 1066, 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).

The Supreme Court also erred in denying the plaintiff's unopposed motion, in effect, pursuant to CPLR 3215, for leave to enter a judgment against the defendants canceling and vacating the satisfactions of mortgage recorded...