Wells Fargo Bank, N.A. v. Lilley

• Decision Date: 11 October 2017
• Docket Number: 2016-08140, Index No. 6366/13.
• Citation: 62 N.Y.S.3d 155,154 A.D.3d 795
• Parties: WELLS FARGO BANK, N.A., appellant, v. Linda M. LILLEY, et al., defendants.
• Court: New York Supreme Court — Appellate Division

154 A.D.3d 795
62 N.Y.S.3d 155

WELLS FARGO BANK, N.A., appellant,
v.
Linda M. LILLEY, et al., defendants.

2016-08140, Index No. 6366/13.

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

Oct. 11, 2017.

62 N.Y.S.3d 156

Gross Polowy, LLC, Westbury, NY (Stephen J. Vargas of counsel), for appellant.

CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, and FRANCESCA E. CONNOLLY, JJ.

154 A.D.3d 795

Appeal from an order of the Supreme Court, Kings County (Francois Rivera, J.), dated September 18, 2015. The order denied the plaintiff's unopposed motion for an order of reference and to deem all defendants who failed to appear or answer in default.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the plaintiff's unopposed motion for an order of reference and to deem all defendants who failed to appear or answer in default is granted.

In April 2013, the plaintiff commenced this action to foreclose a mortgage secured by real property owned by the defendants Linda M. Lilley and Willie Lilley (hereinafter together the defendants), alleging that they had defaulted on their payment obligations. The defendants failed to appear or answer

154 A.D.3d 796

the complaint. In January 2014, within one year of the defendants' default, the plaintiff moved, ex parte, for an order of reference, to deem all the defendants who failed to appear or answer in default, and to amend the caption. The defendants neither opposed the motion nor cross-moved for relief. In December 2014, the Supreme Court denied, without prejudice, those branches of the motion which were for an order of reference and to deem all the defendants who failed to appear

62 N.Y.S.3d 157

or answer in default, and granted that branch of the motion which was to amend the caption.

In July 2015, the plaintiff again moved for an order of reference and to deem all the defendants who failed to appear or answer in default. The defendants neither opposed the motion nor cross-moved for relief. In the order appealed from, the Supreme Court denied the plaintiff's motion "because of delay in making their motion pursuant to CPLR 3215(c) without sufficient excuse."...