Wells Fargo Bank, N.A. v. Combs

• Decision Date: 13 May 2015
• Docket Number: 2014-06496
• Citation: Wells Fargo Bank, N.A. v. Combs, 2015 NY Slip Op 4122, 128 A.D.3d 812, 10 N.Y.S.3d 121 (N.Y. App. Div. 2015)
• Parties: WELLS FARGO BANK, N.A., etc., respondent, v. Lois COMBS, et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 812

10 N.Y.S.3d 121

2015 N.Y. Slip Op. 04122

WELLS FARGO BANK, N.A., etc., respondent

v.Lois COMBS, et al., appellants, et al., defendants.

2014-06496

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

May 13, 2015.

Brian McCaffrey, Jamaica, N.Y., for appellants.

Hogan Lovells U.S. LLP, New York, N.Y. (David Dunn, Chava Brandriss, Leah Rabinowitz Lenz, and Richard A. Sillett of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.

Opinion

In an action to foreclose a mortgage, the defendants Lois Combs and Marc Combs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Hart, J.), entered April 2, 2014, as denied that branch of their motion which was to dismiss the complaint insofar as asserted against them.

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

In 2007, the plaintiff commenced this action to foreclose a mortgage on a residential property located in Queens. The defendants Lois Combs and Marc Combs (hereinafter together the Combs defendants) failed to timely file an answer or otherwise respond to the complaint, and they did not move to extend the time to appear or answer (see CPLR 3012[a][d] ).

After more than six years without an appearance in the action, the Combs defendants moved, inter alia, pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against them on the ground that the plaintiff “failed to take proceedings for the entry of judgment within one year” (CPLR 3215[c] ) after the Combs defendants' default in appearing or answering. At the same time, the Combs defendants challenged the plaintiff's standing to commence this foreclosure action. The Supreme Court rejected the Combs defendants' arguments and denied their motion.

Within a few months after the Combs defendants' default in appearing or answering, the plaintiff took the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference. Thus, the plaintiff initiated proceedings for entry of a judgment within one year of the default, and there was no basis for the dismissal of the complaint pursuant to CPLR 3215(c) (see Klein v. St. Cyprian Props., Inc., 100 A.D.3d 711, 712, 954 N.Y.S.2d 170 ; Home Sav. of Am., F.A. v. Gkanios, 230 A.D.2d 770, 771, 646 N.Y.S.2d 530 ; see also U.S. Bank N.A. v. Poku, 118 A.D.3d 980, 981, 989 N.Y.S.2d 75 ; Mortgage Elec. Registration Sys., Inc. v. Smith, 111...