CITIMORTGAGE INC v. CARTER (2016)

CITIMORTGAGE, INC., Plaintiff–Appellant, v. Kip C. CARTER, Sally Ann Carter, also known as Sally Ann M. Carter, Defendants–Respondents, et al., Defendants.

Decided: June 10, 2016

PRESENT: SMITH, J.P., CENTRA, DEJOSEPH, CURRAN, AND SCUDDER, JJ.

Davidson Fink LLP, Rochester (Larry T. Powell of Counsel), for Plaintiff–Appellant.

In this mortgage foreclosure action, plaintiff appeals from an order and judgment, issued sua sponte, dismissing the complaint without prejudice based on plaintiff's failure to meet a single court-ordered deadline for filing a motion for a judgment of foreclosure. We reverse. Supreme Court erred in dismissing the complaint sua sponte “inasmuch as ‘[u]se of the [sua sponte] power of dismissal must be restricted to the most extraordinary circumstances' “ (BAC Home Loans Servicing, LP v. Maestri, 134 AD3d 1593, 1593), such as “a pattern of willful noncompliance with court-ordered deadlines,” and no such extraordinary circumstances are reflected in the record before us (Bank of Am., N.A. v. Bah, 95 AD3d 1150, 1152; see NYCTL 2008–A Trust v. Estate of Locksley Holas, 93 AD3d 650, 651; U.S. Bank, N.A. v. Guichardo, 90 AD3d 1032, 1033). “Although ‘a litigant cannot ignore court orders with impunity’ ․, we conclude that missing a single deadline by one week does not ‘warrant the court's exercise of its power to dismiss a complaint sua sponte’ “ (Citimortgage, Inc. v. Petragnani, 137 AD3d 1688, _).

It is hereby ORDERED that the order and judgment so appealed from is unanimously reversed on the law without costs and the complaint is reinstated.

MEMORANDUM:

Was this helpful?

Why was this helpful?

Easy to understand

Solved my problem

Other

Why was this not helpful?

Missing the information I need

Too complicated / too many steps

Out of date

Other

Thank you for your feedback!

Trusted by Consumers. Recognized by AI.

As the largest network of trusted legal brands, we help firms build authority across the platforms consumers and AI systems rely on most. Our network helps attorneys strengthen visibility, credibility, and preference where legal decisions begin.

Explore the Network