Deutsche Bank Natl. Trust Co. v. Mohamed

Deutsche Bank Natl. Trust Co. v Mohamed 2026 NY Slip Op 05516 September 30, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Deutsche Bank National Trust Company, etc., appellant, v Salah Mohamed, respondent, et al., defendants. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on September 30, 2026 2024-10455, (Index No. 726044/21) Lara J. Genovesi, J.P. William G. Ford Helen Voutsinas Donna-Marie E. Golia, JJ. Hinshaw & Culbertson LLP, New York, NY (Schuyler B. Kraus, Curtis F. Carr, Jr., and Kevin M. Butler of counsel), for appellant. Alice A. Nicholson, Brooklyn, NY, for respondent. [*1] DECISION & ORDER In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Chereé A. Buggs, J.), entered June 8, 2017. The order, insofar as appealed from, denied those branches of the plaintiff's motion which were to vacate an order of the same court (Martin J. Schulman, J.) dated July 2, 2014, sua sponte, directing dismissal of the complaint, to restore the action to the active calendar, and, upon restoration, to confirm a referee's report and for a judgment of foreclosure and sale. ORDERED that the order entered June 8, 2017, is reversed insofar as appealed from, on the law, with costs, those branches of the plaintiff's motion which were to vacate the order dated July 2, 2014, and to restore the action to the active calendar are granted, and the matter is remitted to the Supreme Court, Queens County, for a determination on the merits of those branches of the plaintiff's motion which were to confirm the referee's report and for a judgment of foreclosure and sale. In October 2008, the plaintiff commenced this action to foreclose a mortgage against, among others, the defendant Salah Mohamed (hereinafter the defendant). The defendant failed to timely appear or answer the complaint. In an order entered January 19, 2010, the Supreme Court granted the plaintiff's unopposed motion, inter alia, for an order of reference. In May 2014, the Supreme Court issued a status conference order, among other things, directing the plaintiff to file certain documents in compliance with Administrative Order 208/13. The plaintiff failed to do so and the plaintiff's application for an extension of time was denied. In an order dated July 2, 2014, the court, sua sponte, directed dismissal of the complaint (hereinafter the dismissal order). In December 2016, the plaintiff moved, inter alia, to vacate the dismissal order, to restore the action to the active calendar, and, upon restoration, to confirm the referee's report and for a judgment of foreclosure and sale. In an order entered June 8, 2017, the Supreme Court, among other things, denied the plaintiff's motion. The plaintiff appeals. A court's power to dismiss an action, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal (see Deutsche Bank Natl. Trust Co. v Howell, 242 AD3d 700, 701; Wells Fargo Bank, N.A. v St. Louis, 229 AD3d 116; Deutsche Bank Trust Co. Ams. v Martinez, 214 AD3d 704, 705). Here, there were no extraordinary circumstances warranting dismissal of the complaint with prejudice. The plaintiff's failure to comply with the directive in the status conference order was not a sufficient ground upon which to direct dismissal of the complaint (see Deutsche Bank Natl. Trust Co. v Howell, 242 AD3d at 701; HSBC Bank USA v Assanah, 237 AD3d 1174, 1175; Onewest Bank, FSB v Tarantola, 156 AD3d 711, 711). The parties' remaining contentions either are without merit or need not be reached in light of our determination. Accordingly, the Supreme Court should have granted those branches of the plaintiff's motion which were to vacate the dismissal order and to restore the action to the active calendar. The Supreme Court did not consider the merits of those branches of the plaintiff's motion which were to confirm the referee's report and for a judgment of foreclosure and sale. Under the circumstances, we remit the matter to the Supreme Court, Queens County, for a determination on the merits of those branches of the plaintiff's motion (see HSBC Bank USA, N.A. v Badalamenti, 228 AD3d 631, 632; Deutsche Bank Natl. Trust Co. v Winslow, 180 AD3d 1000, 1002). GENOVESI, J.P., FORD, VOUTSINAS and GOLIA, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court