Ordered that on the Court's own motion, the plaintiff's notice of appeal from so much of the order dated October 8, 2014, as, sua sponte, directed the dismissal of the complaint is deemed
Ordered that the order dated October 8, 2014, is reversed insofar as appealed from, on the law, and the plaintiff's motion to vacate the order of reference dated April 1, 2009, and for a new order of reference is granted; and it is further,
Ordered that the order dated October 8, 2014, is affirmed insofar as cross-appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff commenced this action to foreclose a mortgage. Upon the defendants' default in answering the complaint, the Supreme Court issued an order of reference dated April 1, 2009. A series of settlement conferences took place over the course of the next year, but they ultimately proved unsuccessful. Thereafter, to comply with the newly implemented Administrative Orders AO/548/10 and AO/431/11 of the Chief Administrative Judge of the Courts, the plaintiff's new counsel investigated and verified the underlying business records and moved on or about April 12, 2013, to vacate the order of reference dated April 1, 2009, and for a new order of reference. The defendant Mrs. King, also known as Joanne King, cross-moved pursuant to CPLR 3211 (a) (3) to dismiss the complaint for lack of standing or, in the alternative, for leave to serve a late answer.
In the order appealed and cross-appealed from, the Supreme Court, sua sponte, directed the dismissal of the complaint pursuant to Kings County Supreme Court Uniform Civil Term Rules, part F, rule 8, on the ground that the plaintiff had failed to move for a judgment of foreclosure and sale within one year of the issuance of the order of reference dated April 1, 2009. The court further denied the plaintiff's motion and King's cross motion as academic in light of its sua sponte determination.
"`A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal'" (Deutsche Bank Natl. Trust Co. v Martin, 134 A.D.3d 665, 665 [2015], quoting U.S. Bank, N.A. v Emmanuel, 83 A.D.3d 1047, 1048 [2011]). No such extraordinary circumstances were present in this case (see Chase Home Fin., LLC v Kornitzer, 139 A.D.3d 784 [2016] [decided herewith]; U.S. Bank N.A. v Ahmed, 137 A.D.3d 1106, 1108 [2016]; Deutsche Bank Natl. Trust Co. v Meah, 120 A.D.3d 465, 466 [2014]). Accordingly, the Supreme Court erred in, sua sponte, directing the dismissal of the complaint.
The Supreme Court should have granted the plaintiff's motion
The Supreme Court properly denied King's cross motion pursuant to CPLR 3211 (a) (3), to dismiss the complaint for lack of standing or, in the alternative, for leave to serve a late answer. The branch of the cross motion which was pursuant to CPLR 3211 (a) (3) was untimely, since it was made after the time to file an answer had expired (see CPLR 3211 [e]; Archer v Motor Veh. Acc. Indem. Corp., 118 A.D.3d 5, 11 [2014]; Lema v New York Cent. Mut. Fire Ins. Co., 112 A.D.3d 891, 892 [2013]). Further, King failed to demonstrate a reasonable excuse for her lengthy delay in seeking to answer the complaint (see CPLR 3012 [d]; Citimortgage, Inc. v Kowalski, 130 A.D.3d 558 [2015]; Deutsche Bank Trust Co. Ams. v Marous, 127 A.D.3d 1012 [2015]).
