CitiMortgage, Inc. v. Lottridge

• Decision Date: 16 September 2016
• Citation: 40 N.Y.S.3d 573,143 A.D.3d 1093,2016 N.Y. Slip Op. 06919
• Parties: CITIMORTGAGE, INC., as Successor by Merger to CitiFinancial Mortgage Company, Inc., Formerly Known as Associates Home Equity Services, Inc., as Successor by Merger to Ford Consumer Finance Company, Inc., Appellant, v. Karen E. LOTTRIDGE, Also Known as Karen Lottridge, et al., Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

143 A.D.3d 1093

40 N.Y.S.3d 573

2016 N.Y. Slip Op. 06919

CITIMORTGAGE, INC., as Successor by Merger to CitiFinancial Mortgage Company, Inc., Formerly Known as Associates Home Equity Services, Inc., as Successor by Merger to Ford Consumer Finance Company, Inc., Appellant,

v.Karen E. LOTTRIDGE, Also Known as Karen Lottridge, et al., Respondents, et al., Defendants.

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

Sept. 16, 2016.

Oct. 20, 2016.

Davidson Fink, LLP, Rochester (Larry T. Powell of counsel), for appellant.

Before: PETERS, P.J., McCARTHY, GARRY, CLARK and AARONS, JJ.

PETERS

, P.J.

Appeal from an order of the Supreme Court (Coccoma, J.), entered February 7, 2014 in Otsego County, which denied plaintiff's motion to vacate an order of dismissal.

In September 2009, plaintiff commenced this mortgage foreclosure action alleging that Frederick Lottridge and defendant Karen E. Lottridge defaulted on a note secured by a mortgage on real property located in Otsego County. Karen Lottridge failed to answer the complaint or appear in the action¹ and, in May 2010, plaintiff moved for an order of reference. Supreme Court issued such order in July 2010 and, the following month, the appointed referee issued a report computing the amount due and owing on the mortgage. The matter languished for two years until September 2012, when plaintiff filed a renewed notice of pendency (see CPLR 6516

). At a status conference on December 5, 2012, Supreme Court directed plaintiff to make an application for a default judgment by December 24, 2012. When plaintiff failed to do so by the prescribed date, the court sua sponte dismissed the complaint pursuant to CPLR 3215(c) and canceled the notice of pendency. Supreme Court denied plaintiff's subsequent motion to vacate the order of dismissal and restore the action to the trial calender, and this appeal by plaintiff ensued.

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.” “To avoid dismissal pursuant to CPLR 3215(c), ‘[i]t is not necessary for a plaintiff to actually obtain a default judgment within one year of the default’ ” (Aurora Loan Servs., LLC v. Gross, 139 A.D.3d 772, 773, 32 N.Y.S.3d 249 [2016], quoting US Bank N.A. v. Dorestant, 131 A.D.3d 467, 469, 15 N.Y.S.3d 142 [2015] ; see

HSBC Bank USA, N.A. v. Traore, 139 A.D.3d 1009, 1010, 32 N.Y.S.3d 283 [2016] ; Wells Fargo Bank, N.A. v. Combs, 128 A.D.3d 812, 813, 10 N.Y.S.3d 121 [2015] ). “[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 256, 257, 686 N.Y.S.2d 22 [1999]

[internal quotation marks and citation omitted]; accord

HSBC Bank USA, N.A. v. Traore, 139 A.D.3d at 1010–1011, 32 N.Y.S.3d 283 ; Aurora Loan Servs., LLC v. Gross, 139 A.D.3d at 773, 32 N.Y.S.3d 249 ; see

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 711, 712, 954 N.Y.S.2d 170 [2012] ).

Here, when 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 defendants' default and, thus, did not abandon this action (see CPLR 3215[c] ; HSBC Bank USA, N.A. v. Traore, 139 A.D.3d at 1011, 32 N.Y.S.3d 283 ; Aurora Loan Servs., LLC v. Gross, 139 A.D.3d at 773, 32 N.Y.S.3d 249 ; U.S. Bank N.A. v. Bassett, 137 A.D.3d 1109, 1110, 28 N.Y.S.3d 109 [2016] ; BAC Home Loans Servicing, LP v. Maestri, 134 A.D.3d 1593, 1593, 21 N.Y.S.3d 925 [2015] ; US 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 838, 839, 4 N.Y.S.3d 47 [2015] ). Accordingly, Supreme Court improperly relied on CPLR 3215(c) in dismissing the complaint.

Although a trial court has the inherent power to dismiss a complaint sua sponte, such power “is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” (Wells Fargo Bank, N.A. v. Pabon, 138 A.D.3d 1217, 1219, 31 N.Y.S.3d 221 [2016]

[internal quotation marks and citations omitted]; see

Loancare v. Carter, 139 A.D.3d 817, 818, 31 N.Y.S.3d 564 [2016] ; CitiMortgage, Inc. v. Petragnani, 137 A.D.3d 1688, 1688, 27 N.Y.S.3d 780 [2016] ; U.S. Bank N.A. v. Gulley, 137 A.D.3d 1008, 1009, 27 N.Y.S.3d 601 [2016] ). Here, while plaintiff's conduct was certainly worthy of criticism, extraordinary circumstances warranting the severe penalty of dismissal of the complaint without notice were not present. While it is true that plaintiff did nothing to pursue a default judgment for approximately two years after the order of reference was issued, plaintiff asserted that the delay was attributable to its attempts to comply with Administrative Order 548/10, which had been replaced by Administrative Order 431/11,² as well as the dissolution of the law firm originally representing it. The record reflects that plaintiff took active steps in pursuit of a default judgment after obtaining new counsel in January 2012 and, although it failed to file an application for a default judgment by the date prescribed by Supreme Court, there is no evidence of a pattern of willful noncompliance with court-ordered deadlines (see CitiMortgage, Inc. v. Carter, 140 A.D.3d 1663, 1663, 32 N.Y.S.3d 786 [2016]

; Aurora Loan Servs., LLC v. Gross, 139 A.D.3d at 773–774, 32 N.Y.S.3d 249 ; Bank of Am., N.A. v. Bah, 95 A.D.3d 1150, 1151–1152, 945 N.Y.S.2d 704 [2012]

). Moreover, “a party must be placed on notice and given an opportunity to be heard as a matter of due process before the court imposes a sanction” (U.S. Bank N.A. v. McCrory, 137 A.D.3d 1517, 1518, 29 N.Y.S.3d 594 [2016] ; see

Bank of N.Y. v. Castillo, 120 A.D.3d 598, 600–601, 991 N.Y.S.2d 446 [2014] ; U.S. Bank, N.A. v. Guichardo, 90 A.D.3d 1032, 1033, 935 N.Y.S.2d 335 [2011] ). There is no indication in...