SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1465
CA 14-00735
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.
MIDFIRST BANK, PLAINTIFF-APPELLANT,
V MEMORANDUM AND ORDER
EUGENE A. EDDY AND JOY E. EDDY,
DEFENDANTS-RESPONDENTS.
FRENKEL LAMBERT WEISS WEISMAN & GORDON, LLP, BAY SHORE (JOSEPH F.
BATTISTA OF COUNSEL), FOR PLAINTIFF-APPELLANT.
Appeal from an order of the Supreme Court, Onondaga County
(Anthony J. Paris, J.), entered July 8, 2013. The order denied
plaintiff’s motion to vacate a prior order and judgment dismissing the
complaint.
It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion to vacate
the order and judgment dated November 15, 2012 is granted, that order
and judgment is vacated, the complaint is reinstated and plaintiff is
granted 30 days from service of the order of this Court with notice of
entry to file and serve either a motion or an ex parte application, as
appropriate, for a judgment of foreclosure and sale.
Memorandum: Plaintiff commenced this action in October 2011 to
foreclose on a mortgage that was secured by property owned by
defendants. Defendants failed to answer or appear and, upon
plaintiff’s motion, Supreme Court issued an order of reference
pursuant to RPAPL 1321. The order of reference, dated July 3, 2012,
directed the Referee to file his report on or before October 3, 2012,
and directed plaintiff to “submit either a Motion or [an] Ex Parte
Application, as appropriate, for a Judgment of Foreclosure and Sale on
or before November 3, 2012.” The order also provided that plaintiff’s
failure “to adhere to the deadlines set forth in this . . . Order,
without good cause shown, shall be deemed an abandonment of the action
pursuant to 22 NYCRR [] 202.48 and shall result in the Court’s
dismissal of the complaint.” Plaintiff did not submit a motion or an
ex parte application for a judgment of foreclosure and sale by
November 3, 2012, and by order and judgment dated November 15, 2012
(dismissal order), the court dismissed the complaint sua sponte. The
Referee thereafter issued his report on February 5, 2013.
The court erred in denying plaintiff’s motion seeking to vacate
the dismissal order. The court improperly dismissed the complaint sua
sponte pursuant to 22 NYCRR 202.48, and no extraordinary circumstances
-2- 1465
CA 14-00735
are present in this case that otherwise would warrant the court’s
exercise of its power to dismiss a complaint sua sponte (see Midfirst
Bank v Bellinger, 117 AD3d 1520, 1521-1522).
We therefore reverse the order, grant plaintiff’s motion, vacate
the dismissal order and reinstate the complaint. We further direct
plaintiff to “submit [to Supreme Court] either a Motion or [an] Ex
Parte Application, as appropriate, for a Judgment of Foreclosure and
Sale” within 30 days of service of the order of this Court with notice
of entry.
Entered: February 6, 2015 Frances E. Cafarell
Clerk of the Court