Opinion
06-10-2016
CITIMORTGAGE, INC., Plaintiff–Appellant, v. Kip C. CARTER, Sally Ann Carter, also known as Sally Ann M. Carter, Defendants–Respondents, et al., Defendants.
Davidson Fink LLP, Rochester (Larry T. Powell of Counsel), for Plaintiff–Appellant.
Davidson Fink LLP, Rochester (Larry T. Powell of Counsel), for Plaintiff–Appellant.
PRESENT: SMITH, J.P., CENTRA, DeJOSEPH, CURRAN, AND SCUDDER, JJ.
MEMORANDUM: In this mortgage foreclosure action, plaintiff appeals from an order and judgment, issued sua sponte, dismissing the complaint without prejudice based on plaintiff's failure to meet a single court-ordered deadline for filing a motion for a judgment of foreclosure. We reverse. Supreme Court erred in dismissing the complaint sua sponte “inasmuch as ‘[u]se of the [sua sponte] power of dismissal must be restricted to the most extraordinary circumstances' ” (BAC Home Loans Servicing, LP v. Maestri, 134 A.D.3d 1593, 1593, 21 N.Y.S.3d 925 ), such as “a pattern of willful noncompliance with court-ordered deadlines,” and no such extraordinary circumstances are reflected in the record before us (Bank of Am., N.A. v. Bah, 95 A.D.3d 1150, 1152, 945 N.Y.S.2d 704 ; see NYCTL 2008–A Trust v. Estate of
Locksley Holas, 93 A.D.3d 650, 651, 939 N.Y.S.2d 715 ; U.S. Bank, N.A. v. Guichardo, 90 A.D.3d 1032, 1033, 935 N.Y.S.2d 335 ). “Although ‘a litigant cannot ignore court orders with impunity’ ..., we conclude that missing a single deadline by one week does not ‘warrant the court's exercise of its power to dismiss a complaint sua sponte’ ” (Citimortgage, Inc. v. Petragnani, 137 A.D.3d 1688, 1688, 27 N.Y.S.3d 780 ).
It is hereby ORDERED that the order and judgment so appealed from is unanimously reversed on the law without costs and the complaint is reinstated.