Summary
stating that an order of reference is a "preliminary step in obtaining a judgment of foreclosure"
Summary of this case from Nasser v. JP Morgan Chase Bank (In re Nasser)Opinion
2014-09048
05-20-2015
U.S. BANK NATIONAL ASSOCIATION, appellant, v. Kawan D. FLOWERS, et al., respondents.
Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (LiJue T. Philip and Andrew Morganstern of counsel), for appellant.
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 a sua sponte dismissal of the complaint by the court (see Wells Fargo Bank, N.A. v. Gioia, 114 A.D.3d 766, 767, 980 N.Y.S.2d 535 ; 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 ; U.S. Bank, N.A. v. Emmanuel, 83 A.D.3d at 1048–1049, 921 N.Y.S.2d 320 ).
Since Justice Arthur Schack continues to ignore this Court's precedent, as articulated in Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d 239, 837 N.Y.S.2d 247, holding that the defense of lack of standing is waived if not raised by the defendant in an answer or pre-answer motion to dismiss (see Deutsche Bank Natl. Trust Co. v. Islar, 122 A.D.3d 566, 996 N.Y.S.2d 130 ; HSBC Bank USA, N.A. v. Taher, 104 A.D.3d at 817, 962 N.Y.S.2d 301 ; U.S. Bank, N.A. v. Emmanuel, 83 A.D.3d at 1048–1049, 921 N.Y.S.2d 320 ; cf. Bank of N.Y. v. Cepeda, 120 A.D.3d 451, 452, 989 N.Y.S.2d 910 ; Bank of N.Y. v. Mulligan, 119 A.D.3d 716, 716, 989 N.Y.S.2d 295 ; Wells Fargo Bank, N.A. v. Gioia, 114 A.D.3d at 767, 980 N.Y.S.2d 535 ), we deem it appropriate to remit the matter to the Supreme Court, Kings County, for further proceedings on the complaint before a different Justice.