BAC Home Loans Servicing, LP v Maestri

BAC Home Loans Servicing, LP v Maestri 2015 NY Slip Op 09777 Decided on December 31, 2015 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 31, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.
1424 CA 15-00517

[*1]BAC HOME LOANS SERVICING, LP, FORMERLY KNOWN AS COUNTRYWIDE HOME LOANS SERVICING LP, PLAINTIFF-APPELLANT,

v

KENNETH MAESTRI, ALSO KNOWN AS KENNETH . MAESTRI, DEFENDANT-RESPONDENT.

FRENKEL LAMBERT WEISS WEISMAN & GORDON, LLP, BAY SHORE (MICHELLE MACCAGNANO OF COUNSEL), FOR PLAINTIFF-APPELLANT.

Appeal from an order of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.), entered January 3, 2014. The order denied the motion of plaintiff to vacate an order dismissing the complaint.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted, the order dated December 13, 2012 is vacated and the complaint is reinstated.

Memorandum: In this mortgage foreclosure action, plaintiff appeals from an order that denied its motion seeking to vacate an order dated December 13, 2012, in which Supreme Court sua sponte dismissed the complaint as abandoned pursuant to CPLR 3215 (c). We agree with plaintiff that the court erred in denying the motion. The 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, and no such extraordinary circumstances are present in this case" (Midfirst Bank v Bellinger, 117 AD3d 1520, 1522 [internal quotation marks omitted]; see HSBC Bank USA, N.A. v Alexander, 124 AD3d 838, 839). Indeed, a plaintiff has not abandoned a foreclosure action where, as here, the plaintiff has taken the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference within one year of the defendant's default (see HSBC Bank USA, N.A., 124 AD3d at 839; Klein v St. Cyprian Props., Inc., 100 AD3d 711, 712).

Entered: December 31, 2015

Frances E. Cafarell

Clerk of the Court