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Deutsche Bank Nat'l Tr. Co. v. Cruz

Supreme Court, Appellate Division, First Department, New York.
Jun 25, 2019
173 A.D.3d 610 (N.Y. App. Div. 2019)

Opinion

9736 Index 35504/13E

06-25-2019

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Plaintiff–Respondent, v. Carmen CRUZ, Defendant–Appellant, Annette Oliveras, etc., et al., Defendants.

Richland & Falkowsi, PLLC, Washingtonville (Daniel H. Richland of counsel), for appellant.


Richland & Falkowsi, PLLC, Washingtonville (Daniel H. Richland of counsel), for appellant.

Gische, J.P., Tom, Kapnick, Kern, Moulton, JJ.

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered July 25, 2018, which, inter alia, granted plaintiff's motion, and denied defendant Cruz's cross motion to dismiss the complaint pursuant to CPLR 3215(c), unanimously reversed, on the law, without costs, the motion denied, the cross motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

The language of CPLR 3215(c), requiring dismissal of an action where judgment is not sought within a year of a default is not discretionary, but mandatory ( HSBC Bank USA, N.A. v. Grella, 145 A.D.3d 669, 671, 44 N.Y.S.3d 56 [2d Dept. 2016] ). The statute excepts cases where "sufficient cause" is shown, but a plaintiff opposing dismissal is required "to proffer a reasonable excuse for the delay in timely moving for a default judgment and to demonstrate that the cause of action is potentially meritorious" ( HSBC Bank, 145 A.D.3d at 671, 44 N.Y.S.3d 56 ; see Selective Auto Ins. Company of N.J. v. Nesbitt, 161 A.D.3d 560, 78 N.Y.S.3d 97 [1st Dept. 2018] ). In this foreclosure action, plaintiff failed to explain why it did not move for a default judgment for over three years after satisfaction of the prior mortgage was recorded. Plaintiff's assertion that it was in continued litigation regarding the prior mortgage until December 2017, is belied by documentary evidence that the other mortgagee acknowledged plaintiff's lien priority as of October 2015. As such, it fails to constitute a reasonable excuse for delay (see Private Capital Group, LLC v. Hosseinipour, 170 A.D.3d 909, 911, 95 N.Y.S.3d 585 [2d Dept. 2019] ).


Summaries of

Deutsche Bank Nat'l Tr. Co. v. Cruz

Supreme Court, Appellate Division, First Department, New York.
Jun 25, 2019
173 A.D.3d 610 (N.Y. App. Div. 2019)
Case details for

Deutsche Bank Nat'l Tr. Co. v. Cruz

Case Details

Full title:Deutsche Bank National Trust Company, etc., Plaintiff-Respondent, v…

Court:Supreme Court, Appellate Division, First Department, New York.

Date published: Jun 25, 2019

Citations

173 A.D.3d 610 (N.Y. App. Div. 2019)
102 N.Y.S.3d 601
2019 N.Y. Slip Op. 5097

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