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PLAINTIFF’S FAILURE TO FILE AN APPLICATION FOR AN ORDER OF REFERENCE IN THIS FORECLOSURE ACTION WAS NOT A GROUND FOR DISMISSAL OF THE COMPLAINT SUA SPONTE (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this foreclosure action, determined the plaintiff’s failure to comply with a directive to apply for an order of reference was not an appropriate ground for dismissing the complaint sua sponte:

“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 to file an application for an order of reference was not a sufficient ground upon which to direct dismissal of the complaint … . Accordingly, the Supreme Court should have granted the plaintiff’s motion to vacate order … and to restore the action to the active calendar. U.S. Bank N.A. v Turner, 2023 NY Slip Op 02023, Second Dept 4-19-23

Practice Point: Sua sponte dismissals of complaints should be rare. Here the failure to file an application for an order of reference in a foreclosure action was not an adequate justification for a sua sponte dismissal.

 

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