                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 7, 2016                     521545
________________________________

WELLS FARGO BANK, N.A.,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

LEVI PABON,
                    Defendant.
________________________________


Calendar Date:   February 16, 2016

Before:   McCarthy, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

                             __________


      Hogan Lovells US LLP, New York City (David Dunn of
counsel), for appellant.

                             __________


Egan Jr., J.

      Appeal from an order of the Supreme Court (Gilpatric, J.),
entered June 2, 2014 in Ulster County, which, among other things,
sua sponte dismissed the complaint.

      On or about May 25, 2006, defendant granted plaintiff a
mortgage interest in certain real property located in the Village
of Ellenville, Ulster County, as security for a loan in the
principal amount of $128,000. Defendant defaulted within the
first year, prompting plaintiff to commence this foreclosure
action in November 2007. Following joinder of issue, plaintiff
moved for summary judgment and for an order of reference. In
support of that motion, plaintiff tendered an affidavit of merit
and amount due from its then vice-president of loan documentation
(hereinafter the 2007 affidavit). Defendant did not oppose
plaintiff's motion and, in June 2008, Supreme Court (Zwack, J.)
awarded plaintiff summary judgment and appointed a referee. In
October 2008, Supreme Court, among other things, confirmed the
                               -2-                521545

referee's report, granted plaintiff a judgment of foreclosure and
sale and awarded plaintiff $2,000 in counsel fees.1 Although
plaintiff assigned the mortgage to a third party in April 2009,
plaintiff continued to service the loan.

      In March 2011, the Chief Administrative Judge of the Courts
issued Administrative Order 431/11 (retroactively effective
November 18, 2010), which imposed certain requirements upon a
plaintiff's attorney in a residential mortgage foreclosure action
(see U.S. Bank N.A. v Polanco, 126 AD3d 883, 884-885 [2015]; see
generally U.S. Bank N.A. v Eaddy, 109 AD3d 908, 909 [2013]).
Specifically, the order required that counsel for the plaintiff
affirm that one of the plaintiff's representatives had personally
reviewed the plaintiff's records for factual accuracy and
"confirmed the factual accuracy of the allegations set forth in
the [c]omplaint and any supporting affidavits or affirmations
filed with the [c]ourt, as well as the accuracy of the
notarizations contained in the supporting documents filed
therewith."2 The order incorporated two form affidavits for this
purpose – one to be filed by the plaintiff's counsel and the
other to be filed by the plaintiff's representative.3

      In an effort to comply with this order, plaintiff's counsel
– in March 2014 – obtained an affidavit of merit and amounts due
and owing from Linda Duncan, plaintiff's then vice-president of


     1
        The record is silent as to whether the referee
subsequently set a date for the sale of the property.
     2
        Although the administrative order also set forth the
various time periods within which counsel's affidavit must be
filed, the timeliness of counsel's affidavit in this action is
not at issue.
     3
        With respect to residential mortgage foreclosure actions
commenced on or after August 30, 2013, Administrative Order
208/13 now applies, which requires a plaintiff's counsel to
either comply with the requirements of Administrative Order
431/11 or file a certificate of merit in the form required by
CPLR 3012-b.
                              -3-                521545

loan documentation. Following a review of plaintiff's records,
Duncan confirmed the accuracy of the principal amount due, the
interest rate and the interest accrual date as set forth in the
summons and complaint and the 2007 affidavit and averred that
defendant indeed was in default.4 Due to the length of time that
had elapsed, however, Duncan was unable to confirm that the 2007
affidavit had been executed with the required formalities.
Accordingly, plaintiff moved pursuant to CPLR 2001 and 5019 (a)
seeking, among other things, to substitute – nunc pro tunc – a
new affidavit of merit and amounts due and owing for the 2007
affidavit and to amend the caption to reflect that the mortgage
had been assigned. Supreme Court (Gilpatric, J.), concluding
that plaintiff had committed fraud and perjury in submitting the
2007 affidavit, denied plaintiff's motion. Supreme Court also,
sua sponte, vacated the judgment of foreclosure and sale and the
order of reference, dismissed the foreclosure action in its
entirety and vacated the prior award of counsel fees. This
appeal by plaintiff ensued.5

      Although a court is permitted to relieve a party from an
order or judgment "upon such terms as may be just," such relief
must be sought "on motion of an[] interested person with such
notice as the court may direct" (CPLR 5015 [a]). Similarly,
while a court indeed is vested with the discretion to cure "any
mistake, defect or irregularity in the papers or procedures in
[an] action not affecting a substantial right of a party" (CPLR
5019 [a]), "a trial court has no revisory or appellate
jurisdiction, sua sponte, to vacate its own order or judgment"
(Carter v Johnson, 110 AD3d 656, 658 [2013] [internal quotation
marks and citations omitted]; see HSBC Bank USA, N.A. v Simmons,


    4
        The only difference in the amount due and owing was that
Duncan's 2014 affidavit omitted plaintiff's claim for the $19.68
in late charges initially assessed against defendant.
    5
        To the extent that plaintiff could not appeal Supreme
Court's order as of right (see CPLR 5701 [a] [2]), we will treat
plaintiff's notice of appeal as an application for leave to
appeal, which we now grant (see CPLR 5701 [c]; HSBC Bank USA,
N.A. v Simmons, 125 AD3d 930, 931 [2015]).
                              -4-                521545

125 AD3d 930, 931 [2015]). Here, defendant did not make a motion
on notice seeking relief from either the judgment of foreclosure
and sale or the order of reference (see Armstrong Trading, Ltd. v
MBM Enters., 29 AD3d 835, 836 [2006]). As a result, plaintiff –
having been afforded no notice in this regard – was entirely
unaware that, in attempting to comply with the requirements of
Administrative Order 431/11, it was facing vacatur of the prior
judgment of foreclosure and sale and the order of reference, as
well as dismissal of the foreclosure action itself.

      "A court's power to dismiss a complaint, sua sponte, is to
be used sparingly and only when extraordinary circumstances exist
to warrant dismissal" (Onewest Bank, FSB v Prince, 130 AD3d 700,
701 [2015] [internal quotation marks and citation omitted];
accord Deutsche Bank Natl. Trust Co. v Martin, 134 AD3d 665, 665
[2015]; HSBC Bank USA, N.A. v Forde, 124 AD3d 840, 841 [2015]).
To our analysis, the record does not support a finding that the
2007 affidavit of merit was "perjured," nor does the record
otherwise "show fraud in the very means by which the judgment [of
foreclosure and sale and order of reference were] procured"
(Rossrock Fund II, L.P. v Norlin Corp., 128 AD3d 1046, 1047
[2015] [internal quotation marks and citations omitted]).
Rather, the record reflects only that counsel made a good-faith
attempt to comply with the terms of an administrative order that
was not in effect at the time that the underlying judgment of
foreclosure and sale and the order of reference were rendered.
Such conduct "does not qualify as . . . an extraordinary
circumstance" warranting dismissal of the underlying complaint
(Deutsche Bank Natl. Trust Co. v Meah, 120 AD3d 465, 466 [2014]
[internal quotation marks omitted]; see Wells Fargo Bank, N.A. v
Watanabe, 136 AD3d 1413, 1414 [2016]). Notably, "[n]othing in
the Administrative Order[] requires the dismissal of an action
merely because the plaintiff's attorney discovers that there was
some irregularity or defect in a prior submission, nor is the
plaintiff effectively required to commence an entirely new
action" (Deutsche Bank Natl. Trust Co. v Meah, 120 AD3d at 466;
see Wells Fargo Bank, N.A. v Watanabe, 136 AD3d at 1414). Under
these circumstances, Supreme Court should not have denied
plaintiff's motion to substitute – nunc pro tunc – a new
affidavit of merit and amounts due and owing, vacated the prior
judgment of foreclosure and sale, together with the order of
                                -5-                  521545

reference, or dismissed the foreclosure action in its entirety
(see Deutsche Bank Natl. Trust Co. v Lawson, 134 AD3d 760, 760
[2015]; Deutsche Bank Natl. Trust Co. v Meah, 120 AD3d at 466;
see also Deutsche Bank Natl. Trust Co. v Otano, 129 AD3d 770,
770-771 [2015]).6

        McCarthy, J.P., Lynch, Devine and Clark, JJ., concur.



      ORDERED that the order is reversed, on the law, without
costs, plaintiff's motion granted and matter remitted to the
Supreme Court for further proceedings not inconsistent with this
Court's decision.




                               ENTER:




                               Robert D. Mayberger
                               Clerk of the Court




    6
        The mortgage is not included in the record on appeal and,
hence, we are unable to ascertain whether – as plaintiff contends
– it was contractually entitled to counsel fees. Assuming that
plaintiff is correct on this point, we also would discern no
basis upon which to vacate the prior award of counsel fees.
