Opinion
2017–02289 Index No. 19454/08
04-10-2019
COUNTRYWIDE HOME LOANS, INC., Appellant, v. Ulderico CARUSO, Respondent, et al., Defendants.
Reed Smith LLP, New York, N.Y. (Joseph B. Teig and Andrew B. Messite of counsel), for appellant. Anthony C. Giordano, Garden City, NY, for respondent.
Reed Smith LLP, New York, N.Y. (Joseph B. Teig and Andrew B. Messite of counsel), for appellant.
Anthony C. Giordano, Garden City, NY, for respondent.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, JJ.
DECISION & ORDERIn an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Carmen R. Velasquez, J.), entered January 9, 2017. The order denied the plaintiff's motion to vacate an order of the same court (Martin J. Schulman, J.), dated March 18, 2015, which directed dismissal of the complaint sua sponte.
ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion to vacate the order dated March 18, 2015, is granted.
In an order dated March 18, 2015, the Supreme Court sua sponte directed dismissal of the complaint (hereinafter the dismissal order) in this residential mortgage foreclosure action, based on the plaintiff's failure to comply with a prior order directing the plaintiff to file an attorney affirmation by that date. The order appealed from denied the plaintiff's motion to vacate the dismissal order.
The Supreme Court should have granted the plaintiff's motion to vacate the dismissal order, as the plaintiff established that no extraordinary circumstances warranted the dismissal of the action sua sponte (see U.S. Bank v. Polanco , 126 A.D.3d 883, 7 N.Y.S.3d 156 ). The plaintiff's action was commenced, and the plaintiff had filed an order of reference, prior to the effective date of Administrative Order 431/11 of the Chief Administrative Judge of the Courts. Therefore, based on the plain language of that Administrative Order, the plaintiff did not have to file the required attorney foreclosure affirmation/certificate until it filed the proposed judgment of foreclosure and sale (see Flagstar Bank v. Bellafiore , 94 A.D.3d 1044, 943 N.Y.S.2d 551 ; U.S. Bank, N.A. v. Boyce , 93 A.D.3d 782, 940 N.Y.S.2d 656 ). Moreover, the plaintiff's undisputed allegations that the mortgagor had executed the subject note and mortgage and defaulted in payments due pursuant to the note demonstrated the merits of its cause of action (see Emigrant Bank v. Marando , 143 A.D.3d 856, 39 N.Y.S.3d 83 ).
Accordingly, the Supreme Court should have granted the plaintiff's motion to vacate the dismissal order.
RIVERA, J.P., ROMAN, HINDS–RADIX and LASALLE, JJ., concur.