U.S. Bank Nat'l Ass'n v. Dorestant

• Decision Date: 05 August 2015
• Docket Number: 2014-10626
• Citation: 15 N.Y.S.3d 142,2015 N.Y. Slip Op. 06428,131 A.D.3d 467
• Parties: US BANK NATIONAL ASSOCIATION, etc., appellant, v. Frantz DORESTANT, respondent, et al., defendants.
• Court: New York Supreme Court — Appellate Division

131 A.D.3d 467

15 N.Y.S.3d 142

2015 N.Y. Slip Op. 06428

US BANK NATIONAL ASSOCIATION, etc., appellant

v.Frantz DORESTANT, respondent, et al., defendants.

2014-10626

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

Aug. 5, 2015.

Frankel, Lambert, Weiss, Weisman & Gordon, LLP, Bay Shore, N.Y. (Joseph F. Battista of counsel), for appellant.

The Law Offices of Jaime Lathrop, P.C., Brooklyn, N.Y. (David Lavery of counsel), for respondent.

REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, ROBERT J. MILLER, and COLLEEN D. DUFFY, JJ.

Opinion

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 (Edwards, J.), dated May 15, 2014, as denied those branches of its motion which were for leave to enter a 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 Frantz Dorestant pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, those branches of the plaintiff's motion which were for leave to enter a judgment against the defendants upon their failure to appear or answer the complaint and for an order of reference are granted, and the cross motion of the defendant Frantz Dorestant pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned is denied.

The plaintiff U.S. Bank National Association (hereinafter U.S. Bank) commenced this action in 2008. The defendants failed to appear or answer the complaint. In 2009, within one year of the defendants' default, U.S. Bank moved, ex parte, for an order of reference. In 2010, before the motion was decided, U.S. Bank sought to withdraw the motion so that it could comply with new rules promulgated by the Office of Court Administration in connection with mortgage foreclosure actions. The motion was marked withdrawn in 2011.

In January 2014, after attending foreclosure settlement conferences at which the defendants failed to appear, the plaintiff moved for leave to enter a judgment against the defendants upon their failure to appear or answer the complaint and for an order of reference. The defendant Frantz Dorestant opposed U.S. Bank's motion, and cross-moved pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned. In the order appealed from, the Supreme Court denied U.S. Bank's motion, granted Dorestant's cross motion, and directed the dismissal of the complaint insofar as asserted against him. U.S. Bank appeals. We reverse the order insofar as appealed from.

CPLR 3215 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” (CPLR 3215[c] ). It 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) (see Wells Fargo Bank, N.A. v. Combs, 128 A.D.3d 812, 10 N.Y.S.3d 121 ; Mortgage Elec. Registration Sys., Inc. v. Smith, 111 A.D.3d 804, 806, 975 N.Y.S.2d 121 ; Jones v. Fuentes, 103 A.D.3d 853, 853, 962 N.Y.S.2d 263 ; Nowicki v. Sports World Promotions, 48 A.D.3d 435, 436, 851 N.Y.S.2d 270 ). Nor is a plaintiff required to specifically seek the entry of a judgment within a year. “ ‘As 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, quoting 7–3215 Weinstein–Korn–Miller, N.Y. Civ. Prac. ¶ 3215.14; see Wells Fargo Bank, N.A. v. Combs, 128 A.D.3d 812, 10 N.Y.S.3d 121 ; Klein v. St. Cyprian Props., Inc., 100 A.D.3d 711, 712, 954 N.Y.S.2d 170 ; Pisciotta v. Lifestyle Designs, Inc., 62 A.D.3d 850, 852, 879 N.Y.S.2d 179 ; Icon Equip. Distribs. v. Gordon Envtl. & Mech. Corp., 272 A.D.2d 579, 579, 709 N.Y.S.2d 426 ; Home Sav. of Am., F.A. v. Gkanios, 230 A.D.2d 770, 770–771, 646 N.Y.S.2d 530 ).

Here, in 2009, when U.S. Bank took the preliminary step toward obtaining a default judgment of foreclosure and sale by moving, ex parte, for an order of reference, it initiated proceedings for entry of the default judgment of foreclosure and sale within one year of the defendants' default and, thus, did not abandon the action (see CPLR 3215[c] ; Wells Fargo Bank, N.A. v. Combs, 128 A.D.3d 812, 10 N.Y.S.3d 121 ; Mortgage Elec. Registration Sys., Inc. v. Smith, 111 A.D.3d at 806, 975 N.Y.S.2d 121 ; Jones v. Fuentes, 103 A.D.3d at 853, 962 N.Y.S.2d 263 ; Klein v. St. Cyprian Props., Inc., 100 A.D.3d at 712, 954 N.Y.S.2d 170 ). Accordingly, the Supreme Court erred in granting Dorestant's cross motion pursuant to CPLR 3215(c) to dismiss the complaint insofar as...