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

• Decision Date: 15 February 2017
• Citation: 48 N.Y.S.3d 182,147 A.D.3d 1002
• Parties: U.S. BANK NATIONAL ASSOCIATION, etc., respondent, v. Marija KONSTANTINOVIC, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

147 A.D.3d 1002

48 N.Y.S.3d 182

U.S. BANK NATIONAL ASSOCIATION, etc., respondent,

v.Marija KONSTANTINOVIC, appellant, et al., defendants.

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

Feb. 15, 2017.

Law Office of Nicholas M. Moccia, P.C., Staten Island, NY, for appellant.

Reed Smith LLP, New York, NY (Andrew B. Messite and Kerren B. Zinner of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, BETSY BARROS, JJ.

In an action to foreclose a mortgage, the defendant Marija Konstantinovic appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Nahman, J.), entered March 16, 2015, as granted those branches of the plaintiff's motion which were to amend the caption to correct the name of the plaintiff, to vacate an order of reference of the same court (Cullen, J.) dated June 2, 2010, and for a new order of reference, and denied that branch of her cross motion which was to dismiss the complaint insofar as asserted against her as abandoned pursuant to CPLR 3215(c) or, in the alternative, for leave to serve an answer.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action on April 13, 2009, to foreclose a mortgage and served the defendant Marija Konstantinovic (hereinafter the defendant) on or about May 1, 2009. The defendant did not serve an answer. In August 2009, the plaintiff moved for an order of reference, and the motion was unopposed. In a decision dated March 8, 2010, the Supreme Court determined that the plaintiff was entitled to an order of reference and directed the plaintiff to "[s]ubmit order."

An order of reference dated June 2, 2010, was filed with the Queens County Clerk.

Over four years later, on July 29, 2014, the plaintiff moved, inter alia, to vacate the order of reference, for a new order of reference, and to amend the caption, "nunc pro tunc, to reflect the Plaintiff['s] name as U.S. Bank National Association, as Trustee for Adjustable Rate Mortgage Trust 2005–10, Adjustable Rate Mortgage Backed Pass Through Certificates, Series 2005–10." The plaintiff's counsel affirmed that the name of the plaintiff in the caption reflected a truncated version of the plaintiff's full name, and therefore, the plaintiff sought to correct the caption to reflect the plaintiff's full name. The defendant opposed the plaintiff's motion and cross-moved, inter alia, to dismiss the complaint insofar as asserted against her as abandoned pursuant to CPLR 3215(c) or, in the alternative, for leave to serve an answer. The Supreme Court granted the plaintiff's motion and denied the defendant's cross motion. We affirm insofar as appealed from.

The Supreme Court properly denied that branch of the defendant's cross motion which was to dismiss the complaint insofar as asserted against her as abandoned pursuant to CPLR 3215(c). 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." "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)" (U.S. Bank N.A. v. Dorestant, 131 A.D.3d 467, 469, 15 N.Y.S.3d 142 ; see Wells Fargo Bank, N.A. v. Daskal, 142 A.D.3d 1071, 1072, 37 N.Y.S.3d 353 ). "Rather, it is enough that the plaintiff timely takes ‘the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference’ to establish that it ‘initiated proceedings for entry of a judgment within one year of the default’ for the purposes of satisfying CPLR 3215(c)" (HSBC Bank USA, N.A. v. Traore, 139 A.D.3d 1009, 1010, 32 N.Y.S.3d 283, quoting Wells Fargo Bank, N.A. v. Combs, 128 A.D.3d 812, 813, 10 N.Y.S.3d 121 ; see Klein v. St. Cyprian Props., Inc., 100 A.D.3d 711, 712, 954 N.Y.S.2d 170 ). In August 2009, when the 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 a default judgment within one year of the defendant's 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 ; U.S. 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 ).

Contrary to the defendant's contention, the Supreme Court providently exercised its discretion by permitting the correction of the name of the plaintiff in the caption since the correction did not affect a substantial right of the defendant (see CPLR 2001 ; HSBC Bank USA, N.A. v. Dalessio, 137 A.D.3d 860, 862, 27 N.Y.S.3d 192 )....