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A MOTION TO VACATE AN ORDER SHOULD BE TRANSFERRED TO THE JUDGE WHO MADE THE ORDER; THE JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1) a motion to vacate an order should be transferred to the judge who made the order; and (2) the judge should not have, sua sponte, dismissed the foreclosure complaint:

A motion to vacate an order “shall be made, on notice, to the judge who signed the order, unless he or she is for any reason unable to hear it” (CPLR 2221[a]). “A motion made to other than a proper judge . . . shall be transferred to the proper judge” (CPLR 2221[c]). Here, instead of denying the first motion with leave to renew before Justice Schulman, the Supreme Court should have transferred the first motion to Justice Schulman … . …

“‘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 directives of the order … was not a sufficient ground upon which to direct dismissal of the complaint in the first action … . Citimortgage, Inc. v Dedalto, 2022 NY Slip Op 06105, Second Dept 11-2-22

Practice Point: A motion to vacate an order should be transferred to the judge who made the order.

Practice Point: A judge’s power to, sua sponte, dismiss a complaint is limited and should only be exercised in extraordinary circumstances (not present in this case).

 

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