Opinion
Nos. 2022-02391 2022-02392 Index No. 2728/13
03-20-2024
Deutsche Bank National Trust Company, etc., respondent, v. Elvis Ellis, appellant, et al., defendants.
Michael Kennedy Karlson, New York, NY, for appellant. Robertson Anschutz, Schneid, Crane & Partners, PLLC, Westbury, NY (Joseph F. Battista and Sean Howland of counsel), for respondent.
Michael Kennedy Karlson, New York, NY, for appellant.
Robertson Anschutz, Schneid, Crane & Partners, PLLC, Westbury, NY (Joseph F. Battista and Sean Howland of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., CHERYL E. CHAMBERS, BARRY E. WARHIT, LAURENCE L. LOVE, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Elvis Ellis appeals from two orders of the Supreme Court, Kings County (Mark I. Partnow, J.), both dated February 8, 2022. The orders, insofar as appealed from, granted those branches of the plaintiff's motion which were to vacate an order of the same court dated November 26, 2019, sua sponte, directing dismissal of the complaint, and to restore this action to the active calendar.
ORDERED that the orders dated February 8, 2022, are affirmed insofar as appealed from, with one bill of costs.
In February 2013, the plaintiff commenced the instant action to foreclose a mortgage against the defendant Elvis Ellis (hereinafter the defendant), among others. In November 2018, the defendant was granted leave to serve a late answer. In an order dated October 22, 2019, the Supreme Court directed the plaintiff to serve and file a note of issue by November 26, 2019. The order also stated "that failure to comply with the terms of this Order may be grounds for dismissal without prejudice." In an order dated November 26, 2019 (hereinafter the dismissal order), the court, sua sponte, directed dismissal of the complaint without prejudice based on the plaintiff's failure to file a note of issue.
On July 12, 2021, the plaintiff moved, inter alia, to vacate the dismissal order and to restore the action to the active calendar. In two orders, both dated February 8, 2022, the Supreme Court, among other things, granted those branches of the plaintiff's motion. The defendant appeals. We affirm.
"A court may not dismiss an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met" (Delgado v New York City Hous. Auth., 21 A.D.3d 522, 522; see Wells Fargo Bank, N.A. v Temlyak, 221 A.D.3d 750). Here, the Supreme Court was without power to direct dismissal of the complaint pursuant to CPLR 3216, as the court failed to serve a written demand upon the plaintiff to resume prosecution of the action and to serve and file a note of issue within 90 days of receipt of the demand (see id. § 3216[b][3]; Deutsche Bank Trust Co. Ams. v Gonzales, 215 A.D.3d 636, 637). Moreover, "[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 [internal quotation marks omitted]; see U.S. Bank N.A. v Bhagwandeen, 216 A.D.3d 700, 701). The plaintiff's failure to comply with the directive in the order dated October 22, 2019, was not a sufficient ground upon which to direct dismissal of the complaint (see U.S. Bank N.A. v Bhagwandeen, 216 A.D.3d at 701; Deutsche Bank Trust Co. Ams. v Gonzales, 215 A.D.3d at 637).
Accordingly, the Supreme Court properly granted those branches of the plaintiff's motion which were to vacate the dismissal order and to restore this action to the active calendar.
The defendant's contention that the dismissal order was proper pursuant to 22 NYCRR 202.27 is raised on appeal for the first time in his reply brief, and is not being considered as it is not properly before this Court (see Yasso v Town of Brookhaven, 219 A.D.3d 784, 787; Deutsche Bank Natl. Trust Co. v Smith, 211 A.D.3d 817, 819-820).
The defendant's remaining contentions need not be reached in light of our determination.
CONNOLLY, J.P., CHAMBERS, WARHIT and LOVE, JJ., concur.