Opinion
9363 Index 382209/10
05-21-2019
CITIMORTGAGE, INC., Plaintiff–Respondent v. Lachmin SAHAI, Defendant–Appellant, Mohanram B. Sahai, et. al., Defendants.
Shiryak, Bowman, Anderson, Gill & Kadochnikov, LLP, Kew Gardens (Mark Anderson of counsel), for appellant. Gross Polowy, LLC, Westbury (Alexandria Kaminski of counsel), for respondent.
Shiryak, Bowman, Anderson, Gill & Kadochnikov, LLP, Kew Gardens (Mark Anderson of counsel), for appellant.
Gross Polowy, LLC, Westbury (Alexandria Kaminski of counsel), for respondent.
Acosta, P.J., Richter, Manzanet–Daniels, Webber, Kern, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about July 31, 2018, which denied defendant's CPLR 3215(c) motion to dismiss the complaint, unanimously affirmed, without costs.
An action is deemed abandoned where a default has occurred and a plaintiff has failed to take proceedings for the entry of a judgment within one year thereafter unless plaintiff has shown "sufficient cause ... why the complaint should not be dismissed" ( CPLR 3215[c] ). Sufficient cause requires a showing of an excuse for a plaintiff's delay in seeking default and a meritorious claim (see Hoppenfeld v. Hoppenfeld , 220 A.D.2d 302, 303, 632 N.Y.S.2d 558 [1st Dept. 1995] [emphasis added] ). We find that the motion court did not abuse its discretion when it denied defendant's motion to dismiss the complaint under CPLR 3215(c) (see LaValle v. Astoria Constr. & Paving Corp. , 266 A.D.2d 28, 697 N.Y.S.2d 605 [1st Dept. 1999] ).
Plaintiff's excuse for its delay in moving for a default judgment under CPLR 3215(c) was due to defendant's bankruptcy petition, which stayed the foreclosure action (see U.S. Bank N.A. v. Joseph , 159 A.D.3d 968, 970, 73 N.Y.S.3d 238 [2d Dept. 2018] ; Levant v. National Car Rental, Inc. , 33 A.D.3d 367, 824 N.Y.S.2d 218 [1st Dept. 2006] ). After the stay was lifted, plaintiff submitted sufficient evidence that the parties engaged in settlement negotiations (see e.g. JPMorgan Chase Bank, Natl. Assn. v. Salvage , 171 A.D.3d 438, 438, 98 N.Y.S.3d 6, 7 [1st Dept. 2019] ; see also Iorizzo v. Mattikow , 25 A.D.3d 762, 764, 807 N.Y.S.2d 663 [2d Dept. 2006] ).
As to the meritorious nature of the claim, plaintiff submitted evidence of the promissory note issued on January 10, 2006 in the amount of $ 429,000. The note was assigned to plaintiff on October 19, 2010. Documentary evidence was submitted where defendant admitted that it could not afford to make any of the monthly payments. Therefore, plaintiff demonstrated that its complaint is potentially meritorious (see Brooks v. Somerset Surgical Assoc. , 106 A.D.3d 624, 625, 966 N.Y.S.2d 65 [1st Dept. 2013] ). Further, the record shows that defendant was not prejudiced by the delay, since he attempted to negotiate a settlement on several occasions (see HSBC Bank USA v. Lugo , 127 A.D.3d 502, 503, 9 N.Y.S.3d 6 [1st Dept. 2015] ).