WELLS FARGO BANK v. SHARF (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Cenceria P. Edwards, J.), dated December 8, 2023.  The order, insofar as appealed from, granted the motion of the defendants Abraham Sharf and Sarah Sharf for leave to enter a judgment dismissing the complaint and denied those branches of the plaintiff's cross-motion which were to vacate so much of an order of the same court (Yvonne Lewis, J.) dated July 30, 2012, as, sua sponte, directed the plaintiff to submit certain material within 60 days “or the instant foreclosure action will be dismissed,” and to restore the action to the active calendar.

ORDERED that the order dated December 8, 2023, is reversed insofar as appealed from, on the law, with costs, the motion of the defendants Abraham Sharf and Sarah Sharf for leave to enter a judgment dismissing the complaint is denied, and those branches of the plaintiff's cross-motion which were to vacate so much of the order dated July 30, 2012, as, sua sponte, directed the plaintiff to submit certain material within 60 days “or the instant foreclosure action will be dismissed,” and to restore the action to the active calendar are granted.

The plaintiff commenced this action to foreclose a mortgage.  In an order dated July 30, 2012 (hereinafter the July 2012 order), the Supreme Court denied the plaintiff's motion for an order of reference on the ground that the plaintiff failed to submit “non-military affidavits,” with leave to renew “upon receipt of the proper papers.”  In the same order, the court, sua sponte, directed that “the plaintiff's attorney is to file an affirmation pursuant to CPLR § 2106 within [60] days of this order or the instant foreclosure action will be dismissed.”  The plaintiff filed a notice of appeal from the July 2012 order, but the appeal was deemed dismissed for failure to perfect.

In 2021, the defendants Abraham Sharf and Sarah Sharf (hereinafter together the defendants) moved “for an order to enter Judgment dismissing this action.”  The defendants contended that the July 2012 order was a self-executing conditional order that became absolute when the plaintiff failed to submit an affirmation within 60 days, and thus the defendants were entitled to a judgment dismissing the action.  The plaintiff cross-moved, among other things, to vacate so much of the July 2012 order as, sua sponte, directed the plaintiff to submit an affirmation within 60 days “or the instant foreclosure action will be dismissed,” and to restore the action to the active calendar.  In an order dated December 8, 2023, the Supreme Court, inter alia, granted the defendants' motion and denied those branches of the plaintiff's cross-motion.  The plaintiff appeals.  We reverse.

The Supreme Court should have denied the defendants' motion and granted the aforementioned branches of the plaintiff's cross-motion.  “The procedural device of dismissing a [complaint] for failure to prosecute is a legislative creation, not part of a court's inherent power” (Airmont Home s v Town of Ramapo, 69 N.Y.2d 901, 902).  This action was never formally dismissed, as the marking-off procedures of CPLR 3404 do not apply to pre-note of issue actions such as this one (see Bank of Am., N.A. v. Ali, 202 AD3d 726, 727;  Deutsche Bank Natl. Trust Co. v Gambino, 181 AD3d 558, 560).  Further, there was neither a 90–day notice pursuant to CPLR 3216 nor an order dismissing the complaint pursuant to 22 NYCRR 202.27, and the defendants do not contend that the action was dismissed pursuant to CPLR 3215(c) (see Bank of Am., N.A. v. Ali, 202 AD3d at 727;  Deutsche Bank Natl. Trust Co. v Gambino, 181 AD3d at 560).  Moreover, there is no specified time frame by which the plaintiff was required to move to vacate the sua sponte portion of the July 2012 order or to move to restore the action to the active calendar, and the plaintiff was not required to demonstrate a reasonable excuse and a meritorious claim (see Bank of Am., N.A. v. Ali, 202 AD3d at 732;  Deutsche Bank Natl. Trust Co. v Gambino, 181 AD3d at 560).

Contrary to the defendants' contention, the plaintiff's contentions are not barred by the rule of Bray v. Cox (38 N.Y.2d 350).  “As a general rule, we do not consider any issue raised on a subsequent appeal that was raised, or could have been raised, in an earlier appeal that was dismissed for lack of prosecution, although we have the inherent jurisdiction to do so” (HSBC Bank, USA, N.A. v. Santella, 243 AD3d 897, 898;  see Rubeo v National Grange Mut. Ins. Co., 93 N.Y.2d 750, 754;  Bray v. Cox, 38 N.Y.2d at 353).  Here, the plaintiff could not have raised the issue of whether it was entitled to restore the action to the active calendar on the appeal from the July 2012 order.  Moreover, the portion of the July 2012 order that directed the plaintiff to file an affirmation within 60 days “or the instant foreclosure action will be dismissed” was issued sua sponte and thus not appealable as of right (see CPLR 5701[a][2];  Sholes v. Meagher, 100 N.Y.2d 333, 335).  The appropriate procedure to obtain review of that portion of the July 2012 order was to move to vacate that order pursuant to CPLR 2221(a) and to appeal as of right if the motion were denied (see id.;  Wilmington Sav. Fund Socy., FSB v Thompson, 230 AD3d 1379, 1380;  HSBC Bank USA, N.A. v. Badalamenti, 228 AD3d 631, 632).

Accordingly, we reverse the order dated December 8, 2023, insofar as appealed from.

LASALLE, P.J., CHRISTOPHER, LANDICINO and MCCORMACK, JJ., concur.