U.S. Bank N.A. v. Green

165 N.Y.S.3d 712, 205 A.D.3d 755, 2022 NY Slip Op 03021

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 4, 2022
• Docket: Index No. 26765/11
• Status: Published

Opinion

U.S. Bank N.A. v Green (2022 NY Slip Op 03021)

U.S. Bank N.A. v Green

2022 NY Slip Op 03021

Decided on May 4, 2022

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 4, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
FRANCESCA E. CONNOLLY, J.P.
JOSEPH J. MALTESE
LARA J. GENOVESI
WILLIAM G. FORD, JJ.

2020-03158
(Index No. 26765/11)

[*1]U.S. Bank National Association, etc., appellant,

v

Deltoria Green, et al., respondents, et al., defendants.

McCabe, Weisberg & Conway, LLC, Melville, NY (Franklin K. Chiu of counsel), for appellant.

Petroff Amshen LLP, Brooklyn, NY (Serge F. Petroff, James Tierney, and Steven Amshen of counsel), for respondent Dennis Reid, sued herein as "John Doe #1."

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Larry D. Martin, J.), dated May 6, 2015. The order, insofar as appealed from, sua sponte, directed the dismissal of the complaint.

ORDERED that on the Court's own motion, the notice of appeal from so much of the order as, sua sponte, directed the dismissal of the complaint is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c]); and it is further,

ORDERED that the order is reversed insofar as appealed from, on the law, with costs.

The Supreme Court improperly, sua sponte, directed the dismissal of the complaint. "A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal" (U.S. Bank, N.A. v Emmanuel, 83 AD3d 1047, 1048; see HSBC Bank USA v Angeles, 143 AD3d 671, 673; Loancare v Carter, 139 AD3d 817, 818). Here, the court was not presented with any extraordinary circumstances warranting sua sponte dismissal of the complaint (see generally Deutsche Bank Natl. Trust Co. v Martin, 134 AD3d 665).

The parties' remaining contentions are either without merit or not properly before this Court.

CONNOLLY, J.P., MALTESE, GENOVESI and FORD, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court