Bank of New York v. Alderazi

Appellate Division of the Supreme Court of New York

Bank of New York v. Alderazi

99 A.D.3d 837, 951 N.Y.2d 900

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 17, 2012

StatusPublished

Cited by1 cases

This text of 99 A.D.3d 837 (Bank of New York v. Alderazi) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bank of New York v. Alderazi, 99 A.D.3d 837, 951 N.Y.2d 900 (N.Y. Ct. App. 2012).

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Opinion

The Supreme Court improvidently exercised its discretion in [838]*838denying the plaintiffs renewed motion pursuant to RPAPL 1321 for an order of reference. The defendants failed to answer the complaint within the time allowed, and the plaintiff submitted, in support of its renewed motion, the mortgage, the note, the verified complaint setting forth the facts establishing the claim, and evidence of the mortgagor’s default (see Emigrant Mtge. Co., Inc. v Fisher, 90 AD3d 823, 824 [2011]; RPAPL 1321). Under these circumstances, the Supreme Court should have granted the plaintiffs renewed motion for an order of reference.

The Supreme Court improvidently exercised its discretion in, sua sponte, directing the dismissal of the complaint. Since the defendants failed to answer the complaint and did not make pre-answer motions to dismiss the complaint, they waived the defense of lack of standing (see CitiMortgage, Inc. v Rosenthal, 88 AD3d 759, 761 [2011]). 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 U.S. Bank, N.A. v Emmanuel, 83 AD3d 1047, 1048-1049 [2011]). Dillon, J.P, Belen, Austin and Sgroi, JJ., concur.

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The Supreme Court improvidently exercised its discretion in [838]*838denying the plaintiffs renewed motion pursuant to RPAPL 1321 for an order of reference. The defendants failed to answer the complaint within the time allowed, and the plaintiff submitted, in support of its renewed motion, the mortgage, the note, the verified complaint setting forth the facts establishing the claim, and evidence of the mortgagor’s default (see Emigrant Mtge. Co., Inc. v Fisher, 90 AD3d 823, 824 [2011]; RPAPL 1321). Under these circumstances, the Supreme Court should have granted the plaintiffs renewed motion for an order of reference.

The Supreme Court improvidently exercised its discretion in, sua sponte, directing the dismissal of the complaint. Since the defendants failed to answer the complaint and did not make pre-answer motions to dismiss the complaint, they waived the defense of lack of standing (see CitiMortgage, Inc. v Rosenthal, 88 AD3d 759, 761 [2011]). 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 U.S. Bank, N.A. v Emmanuel, 83 AD3d 1047, 1048-1049 [2011]). Dillon, J.P, Belen, Austin and Sgroi, JJ., concur.

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Bluebook (online)

99 A.D.3d 837, 951 N.Y.2d 900, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-new-york-v-alderazi-nyappdiv-2012.

Opinion

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