92 A.D.3d 705
N.Y. App. Div.
2012

Aurora Loan Services, LLC, Appellant, v Shahmela Shah Sookoo et al., Defendants.

Appellate Division of the Supreme Court of New York, Second Department

2012

941 NYS2d 503

The defendant Shahmela Shah Sookoo defaulted on her mortgage loan. The plaintiff, the holder of the mortgage and allegedly the holder of the note, commenced this action to foreclose the mortgage. None of the defendants appeared in the action or answered the complaint. As a result, the plaintiff moved, inter alia, pursuant to RPAPL 1321 for an order of reference appointing a referee to ascertain and compute the amount due to it. In an order dated March 31, 2009, the Supreme Court denied the aforementioned branch of the plaintiff‘s motion with leave to renew, among other things, upon its presentation of “all loan origination documents” with respect to the subject mortgage. Subsequently, in an order dated August 14, 2009, the Supreme Court denied that branch of the plaintiff‘s renewed motion which was for an order of reference and, sua sponte, directed the dismissal of the complaint with prejudice and the cancellation of a notice of pendency filed January 10, 2008, based upon the plaintiffs perceived failure to provide “all loan origination documents,” as required by the order dated March 31, 2009.

The Supreme Court erred in denying that branch of the plaintiffs motion which was for an order of reference. The defendants failed to answer within the time allowed, and the plaintiff submitted, in support of its unopposed motion, the mortgage, the note, the verified complaint setting forth the facts establishing the claim, and an affidavit of its employee attesting to the default (see Emigrant Mtge. Co., Inc. v Fisher, 90 AD3d 823 [2011]; RPAPL 1321). Under these circumstances, that branch of the plaintiffs motion which was for an order of reference should have been granted.

In light of the above discussion, the Supreme Court erred in, sua sponte, directing the dismissal of the complaint with prejudice and the cancellation of the notice of pendency (see U.S. Bank, N.A. v Emmanuel, 83 AD3d 1047, 1048 [2011]; HSBC Bank USA, N.A. v Valentin, 72 AD3d 1027, 1029-1030 [2010]). Under the circumstances of this case, we deem it appropriate to remit the matter for further proceedings before a different Justice. Skelos, J.P, Hall, Austin and Miller, JJ., concur.