U.S. Bank v. Narain

2024 NY Slip Op 00334

U.S. Bank National Association, etc., appellant, v. Bissoon Narain, et al., respondents, et al., defendants.

No. 2021-05823, Index No. 26723/09

Supreme Court of New York, Second Department

January 24, 2024

Houser LLP, New York, NY (David S. Yohay and Kathleen M. Massimo of counsel), for appellant.

Queens Legal Services, Jamaica, NY (Randi Scherman and Darlene Mottley of counsel), for respondents.

ANGELA G. IANNACCI, J.P., CHERYL E. CHAMBERS, HELEN VOUTSINAS LOURDES M. VENTURA, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Janice A. Taylor J.), dated December 11, 2015. The order denied the plaintiff's motion to vacate an order of the same court (Martin J. Schulman, J.) dated June 4, 2014, sua sponte directing dismissal of the complaint, to restore the action to the active calendar, for summary judgment on the complaint insofar as asserted against the defendants Bissoon Narain and Deoki Narain, to strike those defendants' answer, for an order of reference, and to amend the caption.

ORDERED that the order dated December 11, 2015, is reversed, on the law and in the exercise of discretion, without costs or disbursements, those branches of the plaintiff's motion which were to vacate the order dated June 4, 2014, and to restore the action to the active calendar are granted, and the matter is remitted to the Supreme Court, Queens County for a determination on the merits of those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Bissoon Narain and Deoki Narain, to strike those defendants' answer, for an order of reference, and to amend the caption.

In 2009, the plaintiff commenced this action against the defendants Bissoon Narain and Deoki Narain (hereinafter together the defendants), among others, to foreclose a mortgage on certain real property located in Far Rockaway. The defendants interposed an answer. In a status conference order dated April 2, 2014 (hereinafter the status conference order), the Supreme Court directed the plaintiff, among other things, to file "an application seeking an Order of Reference or the next applicable application" by June 4, 2014. The status conference order advised that failure to comply "may result in the dismissal of this action without prejudice." In an order dated June 4, 2014 (hereinafter the dismissal order), the court, sua sponte, directed dismissal of the complaint without prejudice on the ground that the plaintiff failed to comply with the terms of the status conference order.

The plaintiff thereafter moved to vacate the dismissal order pursuant to CPLR 2221, to restore the action to the active calendar, for summary judgment on the complaint insofar as asserted against the defendants, to strike the defendants' answer, for an order of reference, and to amend the caption. In an order dated December 11, 2015, the Supreme Court denied the motion. The plaintiff appeals.

The Supreme Court improvidently exercised its discretion in denying the motion on the basis that a consent to change attorney form filed on behalf of the plaintiff did not comply with CPLR 321(b), as there was no demonstrated prejudice to the defendants arising from the technical failure to comply with that statute (see Sperry Assoc. Fed. Credit Union v John, 160 A.D.3d 1007, 1009).

Contrary to the Supreme Court's additional conclusion, the plaintiff was not required to move by order to show cause, as the branch of the motion seeking to vacate the dismissal order was made pursuant to CPLR 2221(a) (see id.). Moreover, this was a proper procedural vehicle for obtaining vacatur of the dismissal order entered sua sponte (see U.S. Bank N.A. v Thompson, 189 A.D.3d 1643, 1644; Tangalin v MTA Long Is. Bus, 92 A.D.3d 766, 767).

As to the merits of the dismissal order, "[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 Bhagwandeen, 216 A.D.3d 700, 701 [internal quotation marks omitted]; see U.S. Bank N.A. v Turner, 215 A.D.3d 889, 890). The plaintiff's failure to comply with the directive in the...