SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
187
CA 14-01845
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
CITIMORTGAGE, INC., PLAINTIFF-APPELLANT,
V MEMORANDUM AND ORDER
JESSICA L. PETRAGNANI, DEFENDANT-RESPONDENT,
ET AL., DEFENDANTS.
DAVIDSON FINK LLP, ROCHESTER (WILLIAM A. SANTMYER OF COUNSEL), FOR
PLAINTIFF-APPELLANT.
Appeal from an order and judgment (one paper) of the Supreme
Court, Onondaga County (James P. Murphy, J.), entered June 26, 2014.
The order and judgment denied the motion of plaintiff to vacate an
order and judgment of dismissal.
It is hereby ORDERED that the order and judgment so appealed from
is unanimously reversed on the law without costs, the motion is
granted, the order and judgment entered February 25, 2014 is vacated,
and the complaint is reinstated.
Memorandum: In this mortgage foreclosure action, plaintiff
appeals from an order and judgment that denied its motion seeking to
vacate an order and judgment entered February 25, 2014, in which
Supreme Court sua sponte dismissed the complaint after plaintiff
missed by one week a deadline set forth in a scheduling order to file
an application for an order of reference. We agree with plaintiff
that the court erred in denying the motion. “The 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, and no such extraordinary circumstances
are present in this case’ ” (BAC Home Loans Servicing, LP v Maestri,
134 AD3d 1593, ___). Although “a litigant cannot ignore court orders
with impunity” (Kihl v Pfeffer, 94 NY2d 118, 123), 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” (MidFirst
Bank v Eddy, 125 AD3d 1458, 1459; cf. Andrea v Arnone, Hedin, Casker,
Kennedy & Drake Architects & Landscape Architects, P.C. [Habiterra
Assoc.], 5 NY3d 514, 521).
Entered: March 25, 2016 Frances E. Cafarell
Clerk of the Court