Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, N.Y. (Joseph F. Battista of counsel), for appellant.
Alice A. Nicholson, Brooklyn, N.Y., for respondent.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ.
Opinion
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Kurtz, J.), dated September 2, 2014, which denied its motion for leave to enter a default judgment against the defendants upon their failure to appear or answer the complaint and for an order of reference, and granted the cross motion of the defendant Abou Traore pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned.
ORDERED that the order is reversed, on the law, with costs, the plaintiff's motion for leave to enter a default judgment against the defendants upon their failure to appear or answer the complaint and for an order of reference is granted, and the cross motion of the defendant Abou Traore pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned is denied.
The plaintiff commenced this action in July 2008. Abou Traore (hereinafter the defendant) did not appear or answer the complaint. Although one of the other defendants served a notice of appearance, none of the defendants otherwise appeared or answered the complaint within the time permitted. In December 2008, the plaintiff moved, ex parte, for an order of reference. In 2010, the plaintiff withdrew the motion before it was decided. The matter was thereafter referred to the foreclosure settlement part where settlement conferences were held, the last of which was held on September 27, 2012.
In December 2013, the plaintiff moved for leave to enter a default judgment and for an order of reference. The defendant opposed the motion, and cross-moved pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned. The Supreme Court denied the plaintiff's motion and granted the defendant's cross motion. The plaintiff appeals.
CPLR 3215(c) provides that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after [a] default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.” However, “[i]t is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant to CPLR 3215(c) ” (U.S. Bank N.A. v. Dorestant, 131 A.D.3d 467, 469, 15 N.Y.S.3d 142 ; see Aurora Loan Servs., LLC v. Gross, 139 A.D.3d 772, 32 N.Y.S.3d 249 ; Wells Fargo Bank, N.A. v. Combs, 128 A.D.3d 812, 813, 10 N.Y.S.3d 121 ). Rather, it is enough that the plaintiff timely takes “the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference” to establish that it “initiated proceedings for entry of a judgment within one year of the default” for the purposes of satisfying CPLR 3215(c) (Wells Fargo Bank, N.A. v. Combs, 128 A.D.3d at 813, 10 N.Y.S.3d 121 ; see Klein v. St. Cyprian
Props., Inc., 100 A.D.3d 711, 712, 954 N.Y.S.2d 170 ; Brown v. Rosedale Nurseries, 259 A.D.2d 256, 257, 686 N.Y.S.2d 22 ). “[A]s long as proceedings are being taken, and these proceedings manifest an intent not to abandon the case but to seek a
judgment, the case should not be subject to dismissal” (Brown v. Rosedale Nurseries, 259 A.D.2d at 257, 686 N.Y.S.2d 22 [internal quotation marks omitted]; see U.S. Bank N.A. v. Dorestant, 131 A.D.3d at 469, 15 N.Y.S.3d 142 ; Wells Fargo Bank, N.A. v. Combs, 128 A.D.3d at 813, 10 N.Y.S.3d 121 ; Klein v. St. Cyprian Props., Inc., 100 A.D.3d at 712, 954 N.Y.S.2d 170 ). This is so even where, as here, the timely motion for an order of reference was subsequently withdrawn (see U.S. Bank N.A. v. Dorestant, 131 A.D.3d at 468, 15 N.Y.S.3d 142 ; HSBC Bank USA, N.A. v. Alexander, 124 A.D.3d 838, 839, 4 N.Y.S.3d 47 ).
In December 2008, when the plaintiff took the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference (see RPAPL 1321[1] ), it initiated proceedings for entry of the default judgment within one year of the defendants' default and, thus, did not abandon this action (see CPLR 3215[c] ; U.S. Bank N.A. v. Dorestant, 131 A.D.3d at 469, 15 N.Y.S.3d 142 ; Wells Fargo Bank, N.A. v. Combs, 128 A.D.3d at 813, 10 N.Y.S.3d 121 ; HSBC Bank USA, N.A. v. Alexander, 124 A.D.3d at 839, 4 N.Y.S.3d 47 ). Accordingly, the Supreme Court erred in applying CPLR 3215(c) and granting the defendant's cross motion to dismiss the action insofar as asserted against him on that basis.
The Supreme Court also erred in denying the plaintiff's motion. The plaintiff demonstrated its entitlement to an order of reference and a default judgment by submitting proof of service of a copy of the summons and complaint, proof of the facts constituting the claim, and proof that, although one of the defendants had served a notice of appearance, none of the defendants, including the defendant, had otherwise appeared or answered within the time allowed (see CPLR 3215[f] ; U.S. Bank N.A. v. Gulley, 137 A.D.3d 1008, 27 N.Y.S.3d 601 ; Deutsche Bank Natl. Trust Co. v. Kuldip, 136 A.D.3d 969, 25 N.Y.S.3d 653 ; U.S. Bank N.A. v. Wolnerman, 135 A.D.3d 850, 850–851, 24 N.Y.S.3d 343 ). “To defeat a facially adequate CPLR 3215 motion, a defendant must show either that there was no default, or that it has a reasonable excuse for its delay and a potentially meritorious defense” (U.S. Bank N.A. v. Dorestant, 131 A.D.3d at 470, 15 N.Y.S.3d 142 [internal quotation marks omitted]; see U.S. Bank N.A. v. Wolnerman, 135 A.D.3d at 851, 24 N.Y.S.3d 343 ; Fried v. Jacob Holding, Inc., 110 A.D.3d 56, 60, 970 N.Y.S.2d 260 ). Here, in opposition to the plaintiff's motion, the defendant failed to demonstrate that he did not default or that he had a reasonable excuse for his default (see U.S. Bank N.A. v. Dorestant, 131 A.D.3d at 470, 15 N.Y.S.3d 142 ). Accordingly, the Supreme Court should have granted the plaintiff's motion for leave to enter a default judgment against the defendants upon their failure to appear or answer the complaint and for an order of reference.