                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 20, 2016                   521497
________________________________

CITIMORTGAGE, INC., as
   Successor by Merger to
   CitiFinancial Mortgage
   Company, Inc., Formerly
   Known as Associates
   Home Equity Services,
   Inc., as Successor by                    MEMORANDUM AND ORDER
   Merger to Ford Consumer
   Finance Company, Inc.,
                    Appellant,
      v

KAREN E. LOTTRIDGE, Also
   Known as KAREN LOTTRIDGE,
   et al.,
                    Respondents,
                    et al.,
                    Defendants.
________________________________


Calendar Date:   September 16, 2016

Before:   Peters, P.J., McCarthy, Garry, Clark and Aarons, JJ.

                             __________


      Davidson Fink, LLP, Rochester (Larry T. Powell of counsel),
for appellant.

                             __________


Peters, P.J.

      Appeal from an order of the Supreme Court (Coccoma, J.),
entered February 7, 2014 in Otsego County, which denied
plaintiff's motion to vacate an order of dismissal.
                               -2-                521497

      In September 2009, plaintiff commenced this mortgage
foreclosure action alleging that Frederick Lottridge and
defendant Karen E. Lottridge defaulted on a note secured by a
mortgage on real property located in Otsego County. Karen
Lottridge failed to answer the complaint or appear in the action1
and, in May 2010, plaintiff moved for an order of reference.
Supreme Court issued such order in July 2010 and, the following
month, the appointed referee issued a report computing the amount
due and owing on the mortgage. The matter languished for two
years until September 2012, when plaintiff filed a renewed notice
of pendency (see CPLR 6516). At a status conference on December
5, 2012, Supreme Court directed plaintiff to make an application
for a default judgment by December 24, 2012. When plaintiff
failed to do so by the prescribed date, the court sua sponte
dismissed the complaint pursuant to CPLR 3215 (c) and canceled
the notice of pendency. Supreme Court denied plaintiff's
subsequent motion to vacate the order of dismissal and restore
the action to the trial calender, and this appeal by plaintiff
ensued.

      CPLR 3215 (c) provides that, "[i]f the plaintiff fails to
take proceedings for the entry of judgment within one year after
[a] default, the court shall not enter judgment but shall dismiss
the complaint as abandoned, without costs, upon its own
initiative or on motion, unless sufficient cause is shown why the
complaint should not be dismissed." "To avoid dismissal pursuant
to CPLR 3215 (c), '[i]t is not necessary for a plaintiff to
actually obtain a default judgment within one year of the
default'" (Aurora Loan Servs., LLC v Gross, 139 AD3d 772, 773
[2016], quoting US Bank N.A. v Dorestant, 131 AD3d 467, 469
[2015]; see HSBC Bank USA, N.A. v Traore, 139 AD3d 1009, 1010
[2016]; Wells Fargo Bank, N.A. v Combs, 128 AD3d 812, 813
[2015]). "[A]s long as 'proceedings' are being taken, and these
proceedings manifest an intent not to abandon the case but to
seek a judgment, the case should not be subject to dismissal"
(Brown v Rosedale Nurseries, 259 AD2d 256, 257 [1999] [internal
quotation marks and citation omitted]; accord HSBC Bank USA, N.A.


     1
        Frederick Lottridge died before the foreclosure action
was commenced.
                              -3-                521497

v Traore, 139 AD3d at 1010-1011; Aurora Loan Servs., LLC v Gross,
139 AD3d at 773; see Wells Fargo Bank, N.A. v Combs, 128 AD3d at
813; Klein v St. Cyprian Props., Inc., 100 AD3d 711, 712 [2012]).

      Here, when plaintiff took the preliminary step toward
obtaining a default judgment of foreclosure and sale by moving
for an order of reference (see RPAPL 1321 [1]), it initiated
proceedings for entry of the default judgment within one year of
defendants' default and, thus, did not abandon this action (see
CPLR 3215 [c]; HSBC Bank USA, N.A. v Traore, 139 AD3d at 1011;
Aurora Loan Servs., LLC v Gross, 139 AD3d at 773; U.S. Bank N.A.
v Bassett, 137 AD3d 1109, 1110 [2016]; BAC Home Loans Servicing,
LP v Maestri, 134 AD3d 1593, 1593 [2015]; US Bank N.A. v
Dorestant, 131 AD3d at 469; Wells Fargo Bank, N.A. v Combs, 128
AD3d at 813; HSBC Bank USA, N.A. v Alexander, 124 AD3d 838, 839
[2015]). Accordingly, Supreme Court improperly relied on CPLR
3215 (c) in dismissing the complaint.

      Although a trial court has the inherent power to dismiss a
complaint sua sponte, such power "is to be used sparingly and
only when extraordinary circumstances exist to warrant dismissal"
(Wells Fargo Bank, N.A. v Pabon, 138 AD3d 1217, 1219 [2016]
[internal quotation marks and citations omitted]; see Loancare v
Carter, 139 AD3d 817, 818 [2016]; CitiMortgage, Inc. v
Petragnani, 137 AD3d 1688, 1688 [2016]; U.S. Bank N.A. v Gulley,
137 AD3d 1008, 1009 [2016]). Here, while plaintiff's conduct was
certainly worthy of criticism, extraordinary circumstances
warranting the severe penalty of dismissal of the complaint
without notice were not present. While it is true that plaintiff
did nothing to pursue a default judgment for approximately two
years after the order of reference was issued, plaintiff asserted
that the delay was attributable to its attempts to comply with
Administrative Order 548/10, which had been replaced by
Administrative Order 431/11,2 as well as the dissolution of the


    2
        On October 20, 2010, the Chief Administrative Judge of
the Courts issued Administrative Order 548/10, which required the
plaintiff's counsel in a residential mortgage foreclosure action
to submit an affirmation confirming, among other things, the
accuracy of the allegations in the complaint and any supporting
                              -4-                521497

law firm originally representing it. The record reflects that
plaintiff took active steps in pursuit of a default judgment
after obtaining new counsel in January 2012 and, although it
failed to file an application for a default judgment by the date
prescribed by Supreme Court, there is no evidence of a pattern of
willful noncompliance with court-ordered deadlines (see
CitiMortgage, Inc. v Carter, 140 AD3d 1663, 1663 [2016]; Aurora
Loan Servs., LLC v Gross, 139 AD3d at 773-774; Bank of Am., N.A.
v Bah, 95 AD3d 1150, 1151-1152 [2012]). Moreover, "a party must
be placed on notice and given an opportunity to be heard as a
matter of due process before the court imposes a sanction" (U.S.
Bank N.A. v McCrory, 137 AD3d 1517, 1518 [2016]; see Bank of N.Y.
v Castillo, 120 AD3d 598, 600-601 [2014]; U.S. Bank, N.A. v
Guichardo, 90 AD3d 1032, 1033 [2011]). There is no indication in
the present record that the court provided such notice.

      While we are constrained to conclude that, under these
circumstances, Supreme Court improvidently exercised its
discretion in sua sponte directing the dismissal of the complaint
and the cancellation of the notice of pendency, we acknowledge
that the conduct of plaintiff frustrates our justice system and
should not be condoned.

     McCarthy, Garry, Clark and Aarons, JJ., concur.




documents (see Wells Fargo Bank, N.A. v Watanabe, 136 AD3d 1413,
1413-1414 [2016]; U.S. Bank N.A. v Polanco, 126 AD3d 883, 884-885
[2015]). On March 2, 2011, Administrative Order 548/10 was
replaced by Administrative Order 431/11, which revised the form
for the required attorney affirmation (see id.).
                              -5-                  521497

      ORDERED that the order is reversed, on the law, without
costs, and motion granted.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
