Onewest Bank, FSB v. Perwaiz

204 A.D.3d 935

164 N.Y.S.3d 857 (Mem)

ONEWEST BANK, FSB, etc., respondent,

v.Shagufta PERWAIZ, et al., appellants, et al, defendant.

2019–01014, 2019–01015

Index No. 22728/09

Supreme Court, Appellate Division, Second Department, New York.

Submitted—February 10, 2022

April 20, 2022

Law Office of Paul R. Kenney, LLC, New York, NY, for appellants.

Stradley Ronon Stevens & Young, LLP, New York, NY (Lijue T. Philip of counsel), for respondent.

BETSY BARROS, J.P., JOSEPH J. MALTESE, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Shagufta Perwaiz and Perwaiz Asghar appeal from two orders of the Supreme Court, Queens County (Salvatore Modica, J.), both entered November 21, 2018. The first order entered November 21, 2018, granted the plaintiff's motion to vacate an order of the same court (Martin J. Schulman, J.) entered January 23, 2015, sua sponte, directing dismissal of the complaint, and to restore the action to the court's calendar. The second order entered November 21, 2018, granted the plaintiff's motion to vacate the order entered January 23, 2015, and to restore the action to the court's calendar, vacated the order entered January 23, 2015, and restored the action to the court's calendar.

ORDERED that the orders entered November 21, 2018, are affirmed, with costs.

In May 2007, the defendants Shagufta Perwaiz and Perwaiz Asghar (hereinafter together the Perwaiz defendants) entered into a consolidation, extension, and modification agreement and mortgage with the plaintiff's predecessor, combining prior mortgages secured by real property in Queens. In or about August 2009, the plaintiff commenced this foreclosure action against the Perwaiz defendants, among others, alleging that the Perwaiz defendants failed to make payments due on October 1, 2008, and thereafter. The Perwaiz defendants failed to answer or appear in this action. The plaintiff was granted an order of reference in December 2009. By order entered January 23, 2015, the Supreme Court, sua sponte, directed dismissal of the complaint, on the ground that the plaintiff failed to comply with the terms of a status conference order entered December 15, 2014.

The plaintiff moved to vacate the January 23, 2015 order, and to restore the action to the Supreme Court's calendar. The court granted the plaintiff's motion, vacated the order entered January 23, 2015, and restored the action to the court's calendar. The Perwaiz defendants appeal.

The Supreme Court providently exercised its discretion in granting the plaintiff's motion to vacate the January 23, 2015 order, and to restore the action to the court's calendar (see Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 68, 760 N.Y.S.2d 727, 790 N.E.2d 1156 ). Administrative Order of the Chief Administrative Judge of the Courts AO/548/10 (which has since been replaced by Admin Order of Chief Admin Judge of Cts AO/431/11 and CPLR 3012–b ), issued on October 20, 2010, required the plaintiff to file with the court an affirmation confirming the accuracy of the plaintiff's pleadings in a residential foreclosure action (see U.S. Bank, NA v. Boyce, 93 A.D.3d 782, 940 N.Y.S.2d 656 ). Here, the December 15, 2014 status conference order directed the plaintiff to file such an affirmation, and an application seeking a judgment of foreclosure and sale, by January 14, 2015. However, a court may not sua sponte dismiss a complaint for failure...