        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

238
CA 13-01639
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND SCONIERS, JJ.


MIDFIRST BANK, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ANDREW J. BELLINGER, CARRIE L. BELLINGER,
DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANTS.


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


     Appeal from an order and judgment (one paper) of the Supreme
Court, Onondaga County (James P. Murphy, J.), entered May 30, 2013.
The order and judgment denied the motion of plaintiff to vacate an
order and judgment of dismissal dated December 19, 2012.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously reversed on the law without costs, the motion to vacate
the order and judgment dated December 19, 2012 is granted, that order
and judgment is vacated, the complaint is reinstated and plaintiff is
granted 30 days from service of the order of this Court with notice of
entry to file and serve either a motion or an ex parte application, as
appropriate, for a judgment of foreclosure and sale.

     Memorandum: Plaintiff commenced this action in February 2012 to
foreclose on a mortgage that was secured by property owned by Andrew
J. and Carrie L. Bellinger (defendants). Defendants failed to answer
or appear, and in July 2012 plaintiff moved for an order of reference
pursuant to RPAPL 1321. Supreme Court granted plaintiff’s motion and
issued an order of reference, entered August 31, 2012, directing the
Referee to file his report on or before November 1, 2012. The order
of reference further directed plaintiff to “submit either a Motion or
[an] Ex Parte Application, as appropriate, for a Judgment of
Foreclosure and Sale” on or before December 15, 2012. The order of
reference provided that plaintiff’s failure to submit a motion or an
ex parte application by that date would be “deemed an abandonment of
the action pursuant to 22 NYCRR [] 202.48 and shall result in the
Court’s dismissal of the complaint.” Plaintiff failed to submit a
motion or an ex parte application by December 15, 2012. By order and
judgment dated December 19, 2012 (dismissal order), the court
dismissed plaintiff’s complaint sua sponte. The Referee did not issue
his report until February 1, 2013. Plaintiff moved to vacate the
dismissal order, arguing, inter alia, that 22 NYCRR 202.48 was
inapplicable and that the order of reference provided plaintiff with
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                                                         CA 13-01639

no recourse to avoid dismissal of the complaint if the Referee had not
yet submitted his report as of December 15, 2012. By the order and
judgment on appeal, the court denied plaintiff’s motion to vacate the
dismissal order. We reverse.

     We note at the outset that we agree with plaintiff that its time
to take an appeal from the dismissal order has not yet expired because
the court, rather than a party, served the dismissal order on
plaintiff (see CPLR 5513 [a]; Siegel, NY Prac § 533 at 948 [5th ed
2011]). That is of no practical consequence, however, because
plaintiff did not attempt to appeal directly from the dismissal order
nor, in any event, could plaintiff do so inasmuch as the dismissal
order is an ex parte order from which no appeal lies as of right (see
CPLR 5701 [a] [2]; Sholes v Meagher, 100 NY2d 333, 335; People ex rel.
De Capua v Lape, 17 AD3d 1041, 1042). Rather, plaintiff used the
appropriate procedural mechanism to seek review of the dismissal order
by moving, upon notice, to vacate the dismissal order and appealing as
of right to this Court from the order and judgment denying that motion
(see CPLR 5701 [a] [3]; Sholes, 100 NY2d at 335). We agree with
plaintiff that this appeal brings up for review the order of reference
as a non-final order that necessarily affected the final order and
judgment on appeal (see CPLR 5501 [a] [1]).

     Contrary to plaintiff’s contention, the court was not required to
comply with CPLR 3216 before dismissing the complaint inasmuch as, by
its terms, CPLR 3216 applies only when issue has been joined in the
action (see CPLR 3216 [b] [1]; Attarian v Cutting Edge Marble &
Granite, 285 AD2d 432, 433). Nevertheless, we agree with plaintiff
that the court erred in dismissing the complaint sua sponte pursuant
to 22 NYCRR 202.48. That rule provides that “[p]roposed orders or
judgments . . . must be submitted for signature, unless otherwise
directed by the court, within 60 days after the signing and filing of
the decision directing that the order be settled or submitted . . .
Failure to submit the order or judgment timely shall be deemed an
abandonment of the motion or action, unless for good cause shown” (22
NYCRR 202.48 [a], [b]). As the Court of Appeals wrote, “[b]y its
plain terms, section 202.48 (a) speaks to the circumstances where the
court’s decision expressly directs a party to submit or settle an
order or judgment” (Funk v Barry, 89 NY2d 364, 367). Thus, the Court
held that “the 60-day period applies only where the court explicitly
directs that the proposed judgment or order be settled or submitted
for signature” (id. at 365). Here, the order of reference did not
explicitly direct plaintiff to settle or submit an order or judgment
for signature. Rather, it directed plaintiff to submit a “Motion or
[an] Ex Parte Application” seeking a judgment of foreclosure and sale.
We therefore conclude that the court erred in dismissing the complaint
in reliance on 22 NYCRR 202.48 (see Funk, 89 NY2d at 365; Shamshovich
v Shvartsman, 110 AD3d 975, 976-977; Chang v Botsacos, 92 AD3d 610,
610). We note in any event that “ ‘[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”
(Hurd v Hurd, 66 AD3d 1492, 1493).

     We do not address plaintiff’s further contention that the court
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                                                         CA 13-01639

erred in relying on CPLR 3215 in dismissing the complaint inasmuch as
the court did not in fact rely upon that statute. Consequently, we
conclude that the court erred in denying plaintiff’s motion to vacate
the dismissal order, and we therefore reverse the order and judgment,
grant the motion, vacate the dismissal order, and reinstate the
complaint. We further direct plaintiff to “submit [to Supreme Court]
either a Motion or [an] Ex Parte Application, as appropriate, for a
Judgment of Foreclosure and Sale” within 30 days of service of the
order of this Court with notice of entry.




Entered:   May 9, 2014                          Frances E. Cafarell
                                                Clerk of the Court
