Bank of Am., N.A. v. Shami

• Decision Date: 19 June 2019
• Docket Number: 2017–00541,2017–00542,Index No. 8372/08
• Citation: Bank of Am., N.A. v. Shami, 173 A.D.3d 954, 104 N.Y.S.3d 719 (N.Y. App. Div. 2019)
• Court: New York Supreme Court — Appellate Division
• Parties: BANK OF AMERICA, N.A., Respondent, v. Solomon E. SHAMI, Appellant, et al., Defendants.

173 A.D.3d 954

104 N.Y.S.3d 719

BANK OF AMERICA, N.A., Respondent,

v.Solomon E. SHAMI, Appellant, et al., Defendants.

2017–00541

2017–00542

Index No. 8372/08

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

June 19, 2019

Argued—February 19, 2019

Lawrence Katz, Valley Stream, NY, for appellant.

McCabe, Weisberg & Conway, LLC, New Rochelle, N.Y. (Allison Sanders and Mars Khaimov of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Solomon E. Shami appeals from (1) an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered September 20, 2016, and (2) an order of the same court entered October 3, 2016. The order entered September 20, 2016, insofar as appealed from, granted those branches of the plaintiff's motion which were for leave to enter a default judgment against the defendant Solomon E. Shami and for an order of reference, and denied the cross motion of the defendant Solomon E. Shami pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned. The order entered October 3, 2016, insofar as appealed from, granted those branches of the plaintiff's motion which were for leave to enter a default judgment against the defendant Solomon E. Shami and for an order of reference, denied the cross motion of the defendant Solomon E. Shami pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned, and appointed a referee to compute the amount due on the mortgage loan.

ORDERED that the order entered September 20, 2016, is reversed insofar as appealed from, on the law, those branches of the plaintiff's motion which were for leave to enter a default judgment against the defendant Solomon E. Shami and for an order of reference are denied, the cross motion of the defendant Solomon E. Shami pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned is granted, and so much of the order entered October 3, 2016, as granted those branches of the plaintiff's motion, denied the cross motion, and appointed a referee to compute the amount due on the mortgage loan is vacated; and it is further,

ORDERED that the appeal from the order entered October 3, 2016, is dismissed as academic in light of our determination on the appeal from the order entered September 20, 2016; and it is further,

ORDERED that one bill of costs is awarded to the appellant.

In May 2008, the plaintiff commenced this action to foreclose a mortgage against Solomon E. Shami (hereinafter the appellant), among others. None of the defendants answered the complaint. The record indicates that following the release of the action from the foreclosure settlement part on October 6, 2008, there was no further activity in the action for several years, and, on October 23, 2012, the action was marked off the court's active calendar. By notice dated January 22, 2016, the plaintiff moved, inter alia, to vacate the dismissal of the action, to restore the action to the court's active calendar, for leave to enter a default judgment against the defendants, and for an order of reference. The appellant cross-moved pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned. In the orders appealed from, the Supreme Court, inter alia, granted those branches of the plaintiff's motion and denied the appellant's cross motion.

Initially, we note that although the plaintiff moved to vacate the dismissal of the action, on this record, the action was never formally dismissed, as the marking-off procedures of CPLR 3404 do not apply to pre-note of issue actions such as this one (see JPMorgan Chase Bank, N.A. v Mehrnia, 143 A.D.3d 946, 947, 39 N.Y.S.3d 801 ; Countrywide Home Loans, Inc. v. Gibson, 111 A.D.3d 875, 875–876, 976 N.Y.S.2d 142 ; Rakha v. Pinnacle Bus Servs., 98 A.D.3d 657, 658, 949 N.Y.S.2d 769 ) and, therefore, the plaintiff needed only to move to restore the action to active status (see JPMorgan Chase Bank, N.A. v Mehrnia, 143 A.D.3d at 947, 39 N.Y.S.3d 801 ; Reed v. Cornell Univ., 101 A.D.3d 840, 842, 955 N.Y.S.2d 403 ; Rakha v. Pinnacle Bus Servs., 98 A.D.3d at 658, 949 N.Y.S.2d 769 ).

Notwithstanding the above, CPLR 3215(c) provides that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned ... unless sufficient cause is shown why the complaint should not be dismissed." The language of CPLR 3215(c) is mandatory in the first instance, inasmuch as it provides that the court "shall" dismiss the complaint when the plaintiff has not sought a default judgment within the requisite one-year period, as the action is deemed to have been abandoned (see Ibrahim v. Nablus Sweets Corp., 161 A.D.3d 961, 963, 77 N.Y.S.3d 439 ; HSBC Bank USA, N.A. v. Grella, 145 A.D.3d 669, 671, 44 N.Y.S.3d 56 ; Giglio v. NTIMP, Inc., 86 A.D.3d 301, 307–308, 926 N.Y.S.2d 546 ; Kay Waterproofing Corp. v. Ray Realty Fulton, Inc., 23 A.D.3d 624, 625, 804 N.Y.S.2d 815 ). The statute gives the court discretion only where the plaintiff demonstrates "sufficient cause" as to why the complaint should not be dismissed ( Ibrahim v. Nablus Sweets Corp., 161 A.D.3d at 963,...