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PLAINTIFF BANK’S FAILURE TO COMPLY WITH A STATUS-CONFERENCE SCHEDULING ORDER IN THIS FORECLOSURE ACTION WAS NOT A SUFFICIENT GROUND FOR THE “SUA SPONTE” DISMISSAL OF THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed the complaint in this foreclosure action based upon plaintiff’s failure to file a motion for judgment of foreclosure by a specified date:

… [A] status conference order was entered … which … directed the plaintiff to file a motion for a judgment of foreclosure and sale by December 20, 2017, and warned that “failure to comply with the terms of this order may result in the dismissal of this action without prejudice.” The plaintiff failed to file a motion for a judgment of foreclosure and sale as directed by the status conference order. … [T]he Supreme Court, … sua sponte, directed dismissal of the complaint without prejudice. …

“‘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 plaintiff’s failure to comply with the directive of the status conference order was not a sufficient ground upon which to direct dismissal of the action … . U.S. Bank N.A. v Stuart, 2022 NY Slip Op 05055, Second Dept 8-24-22

Practice Point: Generally, appellate courts will reverse a “sua sponte” dismissal of a complaint.

 

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APPEAL FROM A DENIAL OF A MOTION TO REARGUE CONSIDERED DESPITE THE DISMISSAL... AN ACTION FOR “STRICT FORECLOSURE” PURSUANT TO RPAPL 1352 ALLOWS...