Aurora Loan Servs., LLC v. Gross

• Decision Date: 11 May 2016
• Docket Number: 2015-05585, Index No. 3369/08.
• Citation: 2016 N.Y. Slip Op. 03691,139 A.D.3d 772,32 N.Y.S.3d 249
• Parties: AURORA LOAN SERVICES, LLC, appellant, v. Sye GROSS, et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 772

32 N.Y.S.3d 249

2016 N.Y. Slip Op. 03691

AURORA LOAN SERVICES, LLC, appellant,

v.Sye GROSS, et al., respondents, et al., defendants.

2015-05585, Index No. 3369/08.

Supreme Court, Appellate Division, Second Department, New York.

May 11, 2016.

Sandelands Eyet, LLP, New York, N.Y. (Laurence P. Chirch and Kieran M. Dowling of counsel), for appellant.

Eran Regev, Great Neck, N.Y., for respondents.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.

In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Knipel, J.), dated March 5, 2015, as denied its motion to vacate an order of the same court dated February 27, 2014, sua sponte directing the dismissal of the complaint pursuant to CPLR 3215(c)

, and to restore the action to the trial calendar.

ORDERED that the order dated March 5, 2015, is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, the plaintiff's motion to vacate the order dated February 27, 2014, and to restore the action to the trial calendar is granted, and the matter is remitted to the Supreme Court, Kings County, for a determination of the cross motion of the defendants Sye Gross and Goldie Gross for leave to serve and file a late answer.

The instant mortgage foreclosure action was commenced in January 2008. In the complaint, the plaintiff alleged that a default in payment occurred beginning with the payment due on October 1, 2007. According to the affidavits of service, the defendants Sye Gross and Goldie Gross (hereinafter together the defendants) were served with process pursuant to CPLR 308(4)

on February 11, 2008. They did not appear or answer the complaint. On June 24, 2008, the plaintiff filed a request for judicial intervention seeking an ex parte order of reference. The plaintiff moved for an order of reference in October 2009, and the motion was withdrawn on November 18, 2009.

A settlement conference was scheduled for September 20, 2010, and the defendants did not appear. On October 20, 2010, Administrative Order 548/10 of the Chief Administrative Judge of the State of New York was issued, requiring a plaintiff's attorney in certain mortgage foreclosure actions to submit an affirmation confirming the accuracy of the allegations in the complaint. On March 2, 2011, Administrative Order 548/10 was replaced by Administrative Order 431/11, which revised the form for the required attorney affirmation. The plaintiff asserts that its former attorney attempted to comply with those Administrative Orders, but was “unsuccessful.” After a status conference on February 27, 2014, the Supreme Court issued an order of that date, which sua sponte directed the dismissal of the complaint pursuant to CPLR 3215(c)

, for the plaintiff's failure to move for leave to enter a default judgment within one year after the defendants' default.

In May 2014, the plaintiff changed attorneys, and thereafter moved to vacate the order dated February 27, 2014, and to restore the action to the trial calendar. In an attorney affirmation submitted in support of the motion, counsel for the plaintiff noted that the plaintiff filed a request for judicial intervention seeking an ex parte order of reference within one year after the defendants' default. The plaintiff's counsel further asserted that the delay in filing the motion arose from attempts to comply with Administrative Orders 548/2010 and 431/2011, and also CPLR 3408

, which mandates settlement conferences in certain mortgage foreclosure actions. The defendants opposed the motion and, in the alternative, cross-moved for leave to serve and file a late answer, contending that the plaintiff's motion for an order of reference was not filed until October 2009, and was subsequently withdrawn. In the order appealed from, the Supreme Court denied the plaintiff's motion and, in effect, denied the defendants' cross motion as academic.

CPLR 3215(c)

states, in pertinent part: “If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter...