You are here: / / JUDGE’S SUA SPONTE DISMISSAL OF THE FORECLOSURE COMPLAINT WAS NOT...
, ,

JUDGE’S SUA SPONTE DISMISSAL OF THE FORECLOSURE COMPLAINT WAS NOT WARRANTED; NO EXTRAORDINARY CIRCUMSTANCES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion to vacate the sua sponte dismissal of the foreclosure complaint should have been granted:

… [I]n a status conference order … , the Court Attorney Referee … directed the plaintiff to file an application seeking an order of reference by the date of the final status conference. Following the final status conference … , the Court Attorney Referee … determined that the plaintiff failed to show good cause for its failure to move for an order of reference as directed, and recommended that the action be dismissed. … [T]he Supreme Court directed 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” … . Here, the Supreme Court was not presented with any extraordinary circumstances warranting a sua sponte dismissal of the complaint … . Indeed, at the time the plaintiff was directed to file an application for an order of reference, an order of reference, as well as a judgment of foreclosure and sale, had already been issued. Bank of N.Y. v Ramirez, 2020 NY Slip Op 05024, Second Dept 9-23-20

 

You might also like
THE DENTISTS’ FEE-SPLITTING AGREEMENT VIOLATED THE EDUCATION LAW; A COURT WILL NOT ENFORCE AN ILLEGAL CONTRACT (SECOND DEPT).
PLAINTIFF IN THIS TRAFFIC ACCIDENT CASE ALLEGED DEFENDANT DRIVER WAS DEFENDANT COMPANY’S EMPLOYEE AND WAS ACTING WITHIN THE SCOPE OF EMPLOYMENT AT THE TIME OF THE ACCIDENT; DEFENDANT COMPANY FAILED TO DEMONSTRATE THE DRIVER WAS AN INDEPENDENT CONTRACTOR, NOT AN EMPLOYEE; THE FACT THAT THE EMPLOYMENT CONTRACT USES THE TERM “INDEPENDENT CONTRACTOR” IS NOT DISPOSITIVE OF THE ISSUE (SECOND DEPT). ​
REFEREE’S FINDINGS WERE BASED UPON HEARSAY PROVIDED BY THE BANK IN THIS FORECLOSURE ACTION; THE REFEREE’S REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).
RELIANCE ON A JURISDICTIONAL THEORY AT TRIAL WHICH DIFFERED FROM THE JURISDICTION CRITERIA ALLEGED IN THE INDICTMENT DEPRIVED DEFENDANT OF FAIR NOTICE OF THE CHARGES AGAINST HIM, NEW TRIAL ORDERED.
Law Firm Representing Wife in a Divorce Proceeding Entitled to Charging Lien Pursuant to Judiciary Law 475 But Not Entitled to Money Judgment with Interest
Plaintiff Did Not Sufficiently Allege Colorado Defendant Had Purposefully Transacted Business In New York—Motion to Dismiss for Lack of Personal Jurisdiction Should Have Been Granted
THE CLIMATOLOGICAL RECORDS WERE NOT CERTIFIED AS BUSINESS RECORDS AND THEREFORE COULD NOT BE RELIED UPON TO SHOW A STORM IN PROGRESS AT THE TIME OF THE SLIP AND FALL; PROOF OF A GENERAL INSPECTION ROUTINE COULD NOT BE RELIED UPON TO SHOW THE ABSENCE OF CONSTRUCTIVE NOTICE OF THE BLACK ICE (SECOND DEPT).
PURPORTED SUPPLEMENTAL BILLS OF PARTICULARS ALLEGING NEW INJURIES WERE ACTUALLY AMENDED BILLS OF PARTICULARS WHICH WERE PROPERLY STRUCK (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

MOTION TO DISMISS THE BREACH OF CONTRACT ACTION BASED ON DOCUMENTARY EVIDENCE... A COMPONENT OF A TOWER CRANE WAS BEING HOISTED WHEN IT SWUNG TO THE SIDE AND...