You are here: / / PLAINTIFF’S FAILURE TO FILE AN APPLICATION FOR AN ORDER OF REFERENCE...
, ,

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.

 

You might also like
THE CALIFORNIA JUDGMENT SHOULD HAVE BEEN GIVEN FULL FAITH AND CREDIT; THE COURT SHOULD NOT HAVE CONSIDERED THE UNDERLYING MERITS (SECOND DEPT).
INSUFFICIENT WEIGHT BEARING CAPACITY OF SHEETROCK FORMING THE ATTIC FLOOR WAS NOT AN OPEN AND OBVIOUS CONDITION (SECOND DEPT).
FRAUD CAUSE OF ACTION STEMMING FROM THE SIGNING OF A DOCUMENT WITHOUT READING IT DISMISSED AS TIME BARRED; RELEVANT STATUTES OF LIMITATIONS AND BURDENS OF PROOF EXPLAINED.
PHOTOGRAPHS OF UNEVEN SIDEWALK WHERE PLAINTIFF FELL WERE PROPERLY AUTHENTICATED AND SHOULD NOT HAVE BEEN EXCLUDED, NEW TRIAL ORDERED (SECOND DEPT).
Domestic Relations Order Must Conform to Stipulation of Settlement
THE CITY DID NOT DEMONSTRATE THE SALARY PROMISED PLAINTIFF AT THE OUTSET WAS A MISTAKE WHICH HAD BEEN CORRECTED, THE CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED; PLAINTIFF’S CROSS MOTION FOR SUMMARY JUDGMENT ON HER BREACH OF CONTRACT ACTION SHOULD HAVE BEEN GRANTED; SUPREME COURT’S ANALYSIS UNDER AN “AT-WILL EMPLOYEE” THEORY WAS NOT APPLICABLE (SECOND DEPT).
DEFENDANT ATTEMPTED A LEFT TURN IN VIOLATION OF VEHICLE AND TRAFFIC LAW 1141; PLANTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS INTERSECTION TRAFFIC-ACCIDENT CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT).
WHETHER THE AGREEMENT TO ARBITRATE IS VALID IS A THRESHOLD ISSUE FOR THE COURT, NOT THE ARBITRATOR (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

A SEX OFFENDER MAY PETITION ANNUALLY FOR A MODIFICATION OF THE RISK LEVEL CLASSIFICATION;... ALTHOUGH THE ATTORNEYS IN THIS LEGAL MALPRACTICE ACTION MISSED THE STATUTE OF...