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SUA SPONTE DISMISSAL FOR LACK OF STANDING REVERSED, LACK OF STANDING DEFENSE WAS WAIVED AND IS NOT A JURISDICTIONAL DEFECT.

The Second Department reversed Supreme Court's sua sponte dismissal of a foreclosure complaint for lack of standing. Because the defendants did not answer the complaint or make a pre-answer motion to dismiss, the defense of lack of standing was waived. The matter was sent back to be heard by a different judge:

The Supreme Court erred in, sua sponte, directing the dismissal of the plaintiff's complaint and discharge of the notice of pendency against the subject property for lack of standing. “A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Here, the Supreme Court was not presented with any extraordinary circumstances warranting sua sponte dismissal of the complaint and discharge of the notice of pendency. Since the defendants did not answer the complaint and did not make pre-answer motions to dismiss the complaint, they waived the defense of lack of standing … . Furthermore, a party's lack of standing does not constitute a jurisdictional defect and does not warrant sua sponte dismissal of a complaint by the court … . Consumer Solutions, LLC v Charles, 2016 NY Slip Op 01794, 2nd Dept 3-16-16

FORECLOSURE (SUA SPONTE DISMISSAL OF COMPLAINT FOR LACK OF STANDING REVERSED)/STANDING (FORECLOSURE, SUA SPONTE DISMISSAL OF COMPLAINT FOR LACK OF STANDING REVERSED, DEFENSE WAS WAIVED AND IS NOT A JURISDICTION DEFECT)

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