Practice point: The Appellate Division reversed and remitted, before a different judge, finding that the Supreme Court erred in, sua sponte, directing the dismissal of the
plaintiff's complaint and discharge of the notice of pendency against
the property at issue for lack of standing. The Appellate Division said that the Supreme Court was not presented with any extraordinary
circumstances warranting sua sponte dismissal of the complaint and
discharge of the notice of pendency. Since the defendants did not answer
the complaint and did not make pre-answer motions to dismiss the
complaint, they waived the defense of lack of standing. In any event, lack of standing is not a
jurisdictional defect and does not warrant a court's sua sponte dismissal of a
complaint.
Student note: A court's power to dismiss a
complaint, sua sponte, is to be used sparingly and only when
extraordinary circumstances warrant dismissal.
Case: Consumer Solutions, LLC v. Charles, NY Slip Op 01794 (2d Dep't 2016)
Here is the decision.
Tomorrow's issue: An attorney's charging lien.
