Opinion
2015-07-8
ONEWEST BANK, FSB, etc., appellant, v. Victor E. PRINCE, et al., defendants.
Teitelbaum & Baskin, LLP, White Plains, N.Y. (Jay Teitelbaum of counsel), for appellant. Polizzotto & Polizzotto, LLC, Brooklyn, N.Y. (Miguel A. Torrellas of counsel), for defendants.
Teitelbaum & Baskin, LLP, White Plains, N.Y. (Jay Teitelbaum of counsel), for appellant. Polizzotto & Polizzotto, LLC, Brooklyn, N.Y. (Miguel A. Torrellas of counsel), for defendants.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, HECTOR D. LaSALLE, JJ.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Martin, J.), dated October 18, 2012, which denied that branch of its unopposed motion which was for an order of reference and, in effect, denied those branches of the motion which were for summary judgment on the complaint, to strike the answers of the defendants Victor E. Prince and Bridget Claxton, and for leave to amend the caption, and, 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 an application for leave to appeal from that portion of the order, and leave to appeal is granted ( seeCPLR 5701[c] ); and it is further,
ORDERED that the order is reversed, on the law, without costs or disbursements, and the plaintiff's unopposed motion for an order of reference, for summary judgment on the complaint, to strike the answers of the defendants Victor E. Prince and Bridget Claxton, and for leave to amend the caption is granted.
The Supreme Court improperly, sua sponte, directed the dismissal of the complaint on the ground that the plaintiff lacked 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” (U.S. Bank, N.A. v. Emmanuel, 83 A.D.3d 1047, 1048, 921 N.Y.S.2d 320; see U.S. Bank N.A. v. Polanco, 126 A.D.3d 883, 7 N.Y.S.3d 156; Citimortgage, Inc. v. Chow Ming Tung, 126 A.D.3d 841, 7 N.Y.S.3d 147; Bank of N.Y. v. Castillo, 120 A.D.3d 598, 991 N.Y.S.2d 446). Here, the Supreme Court was not presented with extraordinary circumstances warranting the sua sponte dismissal of the complaint ( see HSBC Bank USA, N.A. v. Simmons, 125 A.D.3d 930, 932, 5 N.Y.S.3d 175; Onewest Bank, FSB v. Fernandez, 112 A.D.3d 681, 682, 976 N.Y.S.2d 405). Since the defendants Victor E. Prince and Bridget Claxton did not raise the defense of lack of standing in their answers and did not make pre-answer motions to dismiss the complaint on that ground, they waived the issue ( see JPMorgan Chase Bank, N.A. v. Bauer, 92 A.D.3d 641, 642, 938 N.Y.S.2d 190; Citimortgage, Inc. v. Rosenthal, 88 A.D.3d 759, 761, 931 N.Y.S.2d 638). Moreover, 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 HSBC Bank USA, N.A. v. Simmons, 125 A.D.3d at 932, 5 N.Y.S.3d 175; 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 815, 817, 962 N.Y.S.2d 301; Bank of N.Y. v. Alderazi, 99 A.D.3d 837, 838, 951 N.Y.S.2d 900; U.S. Bank, N.A. v. Emmanuel, 83 A.D.3d at 1048, 921 N.Y.S.2d 320).
Moreover, the Supreme Court erred in denying that branch of the plaintiff's unopposed motion which was for an order of reference and, in effect, denying those branches of the motion which were for summary judgment on the complaint, to strike the answers of the defendants Victor E. Prince and Bridget Claxton, and for leave to amend the caption. “Generally, a plaintiff in a mortgage foreclosure action is entitled to summary judgment if it establishes the existence of a mortgage, an unpaid note, and the defendant's default, and the defendant fails to raise a triable issue of fact in opposition” (PNC Bank, N.A. v. Klein, 125 A.D.3d 953, 954, 5 N.Y.S.3d 439; see NationStar Mtge., LLC v. Silveri, 126 A.D.3d 864, 7 N.Y.S.3d 158; Wachovia Bank, N.A. v. Carcano, 106 A.D.3d 724, 725, 965 N.Y.S.2d 516; Swedbank, AB, N.Y. Branch v. Hale Ave. Borrower, LLC, 89 A.D.3d 922, 923, 932 N.Y.S.2d 540). Here, the plaintiff demonstrated its prima facie entitlement to judgment as a matter of law by producing the mortgage, unpaid note, and evidence of default ( see NationStar Mtge., LLC v. Silveri, 126 A.D.3d 864, 7 N.Y.S.3d 158). Since no opposition was filed, the defendants failed to raise a triable issue of fact ( see Citimortgage, Inc. v. Chow Ming Tung, 126 A.D.3d 841, 7 N.Y.S.3d 147; Flagstar Bank v. Bellafiore, 94 A.D.3d 1044, 1045, 943 N.Y.S.2d 551). Accordingly, the Supreme Court should have granted the motion ( see NationStar Mtge., LLC v. Silveri, 126 A.D.3d 864, 7 N.Y.S.3d 158; Deutsche Bank Natl. Trust Co. v. Islar, 122 A.D.3d 566, 567, 996 N.Y.S.2d 130; Flagstar Bank v. Bellafiore, 94 A.D.3d 1044, 1045, 943 N.Y.S.2d 551; HSBC Bank USA, NA v. Schwartz, 88 A.D.3d 961, 961, 931 N.Y.S.2d 528; Wells Fargo Bank Minn., Natl. Assn. v. Perez, 41 A.D.3d 590, 590, 837 N.Y.S.2d 877).