SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1306
CA 15-00965
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND WHALEN, JJ.
WELLS FARGO BANK, N.A., PLAINTIFF-APPELLANT,
V MEMORANDUM AND ORDER
MAKOTO WATANABE, PEOPLE OF THE STATE OF NEW YORK,
DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANTS.
WOODS OVIATT GILMAN LLP, ROCHESTER (KATERINA M. KRAMARCHYK OF
COUNSEL), FOR PLAINTIFF-APPELLANT.
Appeal from an order of the Supreme Court, Onondaga County
(Anthony J. Paris, J.), entered August 27, 2013. The order, inter
alia, denied that part of the motion of plaintiff seeking to
substitute an affidavit of merit and amount due and dismissed the
complaint.
It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting that part of the motion to
substitute, nunc pro tunc, a newly signed affidavit of merit and
amount due in place of the affidavit of merit and amount due that was
attached to plaintiff’s initial application for an order of reference,
and reinstating the complaint, and as modified the order is affirmed
without costs.
Memorandum: In this mortgage foreclosure action, plaintiff
appeals from an order that denied that part of its motion seeking to
substitute an affidavit of merit and amount due, and dismissed the
complaint. Plaintiff obtained a judgment of foreclosure and sale on
the subject residential property in November 2008. Subsequent to
entry of the judgment of foreclosure and sale, but before the subject
property was sold, the Chief Administrative Judge issued
Administrative Order 548/10 on October 20, 2010, which has since been
amended by Administrative Order 431/11 (hereafter, Administrative
Order). The Administrative Order requires a plaintiff’s attorney in a
residential mortgage foreclosure action to file an affirmation
indicating that he or she communicated with a representative of the
plaintiff, and that the representative informed the attorney that
“he/she/they (a) personally reviewed [the] plaintiff’s documents and
records relating to [the] case for factual accuracy; and (b) confirmed
the factual accuracy of the allegations set forth in the [c]omplaint
and any supporting affidavits or affirmations filed with the [c]ourt,
as well as the accuracy of the notarizations contained in the
supporting documents filed therewith.” The filing of such attorney
-2- 1306
CA 15-00965
affirmation is mandatory (see U.S. Bank N.A. v Eaddy, 109 AD3d 908,
909; LaSalle Bank, NA v Pace, 100 AD3d 970, 970-971). Plaintiff had
to replace its prior counsel with a new law firm in December 2011.
Plaintiff’s new attorneys were advised by plaintiff that it could not
“confirm the proper execution and/or notarizations” of the affidavit
of merit and amount due that was attached to plaintiff’s initial
application to Supreme Court for an order of reference. Plaintiff was
able, however, to verify that the amount and allegations set forth
were true and accurate, and thus plaintiff’s new attorneys moved to
substitute, nunc pro tunc, the original affidavit of merit and amount
due with a new, substantively identical affidavit of merit and amount
due, the execution and notarization of which could be confirmed as
accurate by plaintiff as required by the Administrative Order. We
agree with plaintiff that the court erred in denying its motion and in
dismissing the complaint sua sponte, and we therefore modify the order
accordingly.
“ ‘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 Meah, 120 AD3d
465, 466). Here, we conclude that “[t]he fact that . . . plaintiff’s
[new] attorney[s] attempted to comply, in good faith, with an
Administrative Order of the Chief Administrative Judge that did not
exist at the time that the action was commenced, or at the time [the
judgment of foreclosure and sale was granted], does not qualify as
such an ‘extraordinary circumstance’ ” that would support a sua sponte
dismissal (id.). Indeed, “[n]othing in the Administrative Order[]
requires the dismissal of an action merely because the plaintiff’s
attorney[s] discover[] that there was some irregularity or defect in a
prior submission” (id.). Thus, contrary to the court’s determination,
we conclude that plaintiff is not “effectively required to commence an
entirely new action” (id.).
We further conclude that the court erred in denying that part of
plaintiff’s motion seeking to substitute the affidavit of merit and
amount due. “CPLR 2001 permits a court, at any stage of an action, to
disregard a party’s mistake, omission, defect, or irregularity if a
substantial right of a party is not prejudiced” (Eaddy, 109 AD3d at
910; see Matter of Tagliaferri v Weiler, 1 NY3d 605, 606). In
addition, “[p]ursuant to CPLR 5019 (a), a trial court has the
discretion to correct an order or judgment which contains a mistake,
defect, or irregularity not affecting a substantial right of a party”
(Eaddy, 109 AD3d at 910 [internal quotation marks omitted]; see Page v
Page, 39 AD3d 1204, 1205). Here, we conclude that the substitution of
the original affidavit of merit and amount due with a new,
substantively identical affidavit of merit and amount due was a
ministerial amendment permitted by CPLR 2001 and CPLR 5019 (a)
inasmuch as the change affected only plaintiff’s ability to comply
with the Administrative Order, and “[t]he attorney affirmation is not
itself substantive evidence” (LaSalle, 100 AD3d at 971; see generally
Eaddy, 109 AD3d at 910). We further conclude that “[n]o substantial
right of [defendant Makoto Watanabe would] be affected by the court’s
substitution” (Eaddy, 109 AD3d at 910). Indeed, that defendant did
not reside in the subject property when plaintiff commenced the
-3- 1306
CA 15-00965
mortgage foreclosure action and the property was vacant at that time,
and he never joined this action nor made any effort to contest the
foreclosure.
Entered: February 11, 2016 Frances E. Cafarell
Clerk of the Court