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ABSENT “EXTRAORDINARY CIRCUMSTANCES,” A JUDGE DOES NOT HAVE THE AUTHORITY TO, SUA SPONTE, DISMISS A COMPLAINT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed the complaint because there were no “extraordinary circumstances:”

The Supreme Court erred … in, sua sponte, directing 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, although the plaintiff’s submissions were insufficient to demonstrate his entitlement to a default judgment, no extraordinary circumstances existed to warrant dismissal of the complaint … . Binder v Tolou Realty Assoc., Inc., 2022 NY Slip Op 03223, Second Dept 5-18-22

Practice Point: Absent so-called “extraordinary circumstances.” a judge does not have the authority to, sua sponte, dismiss a complaint. Here plaintiff’s evidence was not sufficient to support a default judgment, but that insufficiency did not justify dismissing the complaint.

 

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THE PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE THE INTEREST CALCULATION... A MONETARY PENALTY IMPOSED UPON PLAINTIFF’S ATTORNEY, AS OPPOSED TO DISMISSAL...