Jpmorgan Chase Bank, Nat'l Ass'n v. Hosain

• Decision Date: 11 December 2019
• Docket Number: 2016–11514,2016–11515,Index No. 18306/09
• Citation: 114 N.Y.S.3d 122,178 A.D.3d 785
• Parties: JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Respondent, v. Mozamel HOSAIN, Appellant, et al., Defendants; Federal National Mortgage Association, Nonparty.
• Court: New York Supreme Court — Appellate Division

178 A.D.3d 785

114 N.Y.S.3d 122

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Respondent,

v. Mozamel HOSAIN, Appellant, et al., Defendants;Federal National Mortgage Association, Nonparty.

2016–11514

2016–11515

Index No. 18306/09

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

December 11, 2019

Argued—February 4, 2019

DECISION & ORDER

ORDERED that the appeal from the second order is dismissed as academic; and it is further,

ORDERED that the first order is reversed insofar as appealed from, on the law, and that branch of the motion of the defendant Mozamel Hosain which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned is granted; and it is further,

ORDERED that one bill of costs is awarded to the defendant Mozamel Hosain.

In July 2009, the plaintiff commenced this mortgage foreclosure action against, among others, the defendant Mozamel Hosain (hereinafter the defendant). The defendant was served pursuant to CPLR 308(2) on July 22, 2009, but did not interpose an answer to the complaint. By notice of motion dated September 5, 2012, the plaintiff moved, inter alia, for an order of reference. However, the plaintiff subsequently withdrew its motion. By written assignment dated April 5, 2014, the plaintiff assigned the mortgage to the Federal National Mortgage Association.

In April 2016, the defendant moved, inter alia, pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned. The plaintiff opposed the defendant's motion and cross-moved, inter alia, for an order of reference. In an order dated September 19, 2016, the Supreme Court, inter alia, denied that branch of the defendant's motion. In a second order dated September 19, 2016, the court denied the defendant's motion, granted the plaintiff's cross motion, and referred the matter to a referee to compute the amount due on the mortgage loan. The defendant appeals from so much of the orders as denied that branch of his motion which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned.

In an order dated April 24, 2017, the Supreme Court, among other things, upon reargument, denied the plaintiff's cross motion, inter alia, for an order of reference, and vacated the second order appealed from. Accordingly, the appeal from the second order must be dismissed as academic.

Pursuant to CPLR 3215(c), "[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 ... upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." "The language of CPLR 3215(c) is not, in the first instance, discretionary, but mandatory, inasmuch as courts ‘shall’ dismiss claims ( CPLR 3215[c] ) for which default judgments are not sought within the requisite one-year period, as those claims are then deemed abandoned" ( Giglio v. NTIMP, Inc. , 86 A.D.3d 301, 307–308, 926 N.Y.S.2d 546 ; see HSBC Bank USA, N.A. v. Jean , 165 A.D.3d 632, 633, 85 N.Y.S.3d 125 ; Pipinias v. J. Sackaris & Sons, Inc. , 116 A.D.3d 749, 751, 983 N.Y.S.2d 587 ). " ‘Failure to take proceedings for entry of judgment may be excused, however, upon a showing of sufficient cause,’ which requires the plaintiff to ‘demonstrate that it had a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action’ " ( HSBC Bank USA, N.A. v. Jean , 165 A.D.3d at 634, 85 N.Y.S.3d 125, quoting Aurora Loan Servs., LLC v. Hiyo , 130 A.D.3d 763, 764, 13 N.Y.S.3d 554 ).

Here, the defendant was served pursuant to CPLR 308(2) on July 22, 2009, and defaulted by failing to serve an answer within 30 days thereof (see CPLR 320[a] ).

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