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

492
CA 15-01234
PRESENT: SMITH, J.P., CENTRA, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


CITIMORTGAGE, INC., PLAINTIFF-APPELLANT,

                      V                            MEMORANDUM AND ORDER

KIP C. CARTER, SALLY ANN CARTER, ALSO KNOWN AS
SALLY ANN M. CARTER, DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANTS.


DAVIDSON FINK LLP, ROCHESTER (LARRY T. POWELL OF COUNSEL), FOR
PLAINTIFF-APPELLANT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Onondaga County (James P. Murphy, J.), entered June 18, 2014.
The order and judgment dismissed the complaint.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously reversed on the law without costs and the complaint is
reinstated.

     Memorandum: In this mortgage foreclosure action, plaintiff
appeals from an order and judgment, issued sua sponte, dismissing the
complaint without prejudice based on plaintiff’s failure to meet a
single court-ordered deadline for filing a motion for a judgment of
foreclosure. We reverse. Supreme 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’ ” (BAC Home Loans Servicing, LP v Maestri, 134 AD3d
1593, 1593), such as “a pattern of willful noncompliance with
court-ordered deadlines,” and no such extraordinary circumstances are
reflected in the record before us (Bank of Am., N.A. v Bah, 95 AD3d
1150, 1152; see NYCTL 2008-A Trust v Estate of Locksley Holas, 93 AD3d
650, 651; U.S. Bank, N.A. v Guichardo, 90 AD3d 1032, 1033). “Although
‘a litigant cannot ignore court orders with impunity’ . . . , we
conclude that missing a single deadline by one week does not ‘warrant
the court’s exercise of its power to dismiss a complaint sua sponte’ ”
(Citimortgage, Inc. v Petragnani, 137 AD3d 1688, ___).




Entered:    June 10, 2016                        Frances E. Cafarell
                                                 Clerk of the Court
