Opinion
2020–03158 Index No. 26765/11
05-04-2022
U.S. BANK NATIONAL ASSOCIATION, etc., appellant, v. Deltoria GREEN, et al., respondents, et al., defendants.
McCabe, Weisberg & Conway, LLC, Melville, NY (Franklin K. Chiu of counsel), for appellant. Petroff Amshen LLP, Brooklyn, NY (Serge F. Petroff, James Tierney, and Steven Amshen of counsel), for respondent Dennis Reid, sued herein as "John Doe # 1."
McCabe, Weisberg & Conway, LLC, Melville, NY (Franklin K. Chiu of counsel), for appellant.
Petroff Amshen LLP, Brooklyn, NY (Serge F. Petroff, James Tierney, and Steven Amshen of counsel), for respondent Dennis Reid, sued herein as "John Doe # 1."
FRANCESCA E. CONNOLLY, J.P., JOSEPH J. MALTESE, LARA J. GENOVESI, WILLIAM G. FORD, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Larry D. Martin, J.), dated May 6, 2015. The order, insofar as appealed from, sua sponte, directed the dismissal of the complaint.
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 is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c] ); and it is further,
ORDERED that the order is reversed insofar as appealed from, on the law, with costs.
The Supreme Court improperly, sua sponte, directed the dismissal of the complaint. "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 HSBC Bank USA v. Angeles, 143 A.D.3d 671, 673, 38 N.Y.S.3d 580 ; Loancare v. Carter, 139 A.D.3d 817, 818, 31 N.Y.S.3d 564 ). Here, the court was not presented with any extraordinary circumstances warranting sua sponte dismissal of the complaint (see generally Deutsche Bank Natl. Trust Co. v. Martin, 134 A.D.3d 665, 19 N.Y.S.3d 777 ).
The parties’ remaining contentions are either without merit or not properly before this Court.
CONNOLLY, J.P., MALTESE, GENOVESI and FORD, JJ., concur.