BANK v. MORRISON (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Denis J. Butler, J.), dated December 4, 2023.  The order, insofar as appealed from, denied those branches of the plaintiff's unopposed motion which were to vacate an order of the same court (Martin J. Schulman, J.) dated August 16, 2017, sua sponte, directing dismissal of the complaint without prejudice, and to restore the action to the active calendar.

ORDERED that the order dated December 4, 2023, is reversed insofar as appealed from, on the law, without costs or disbursements, and those branches of the plaintiff's unopposed motion which were to vacate the order dated August 16, 2017, and to restore the action to the active calendar are granted.

In 2010, the plaintiff commenced this action to foreclose a mortgage encumbering certain real property located in Queens.  In an order dated March 1, 2017 (hereinafter the March 2017 order), the Supreme Court, inter alia, directed the plaintiff to file a motion for a judgment of foreclosure and sale by August 16, 2017.  The plaintiff failed to do so.  In an order dated August 16, 2017 (hereinafter the August 2017 order), the court, sua sponte, directed dismissal of the complaint without prejudice, in effect, due to the plaintiff's failure to comply with the March 2017 order.

Thereafter, the plaintiff moved, among other things, to vacate the August 2017 order and to restore the action to the active calendar.  In an order dated December 4, 2023, the Supreme Court, inter alia, denied those branches of the plaintiff's unopposed motion.  The plaintiff appeals.

“ ‘A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal’ ” (Onewest Bank, FSB v. Tarantola, 156 AD3d 711, 711, quoting Onewest Bank, FSB v. Fernandez, 112 AD3d 681, 682).  Here, the plaintiff's failure to move for a judgment of foreclosure and sale as directed by the March 2017 order was not a sufficient ground upon which to, sua sponte, direct dismissal of the complaint (see Deutsche Bank Trust Co. Ams. v Martinez, 214 AD3d 704, 705;  Onewest Bank, FSB v. Perwaiz, 204 AD3d 935, 936).  Accordingly, the Supreme Court should have granted those branches of the plaintiff's motion which were to vacate the August 2017 order and to restore the action to the active calendar.

DILLON, J.P., WOOTEN, VENTURA and OTTLEY, JJ., concur.