Opinion
2016–07073 Index No. 4731/13
01-23-2019
HSBC BANK USA, N.A., etc., Plaintiff, v. Daniel M. MYERS, et al., Appellants, et al., Defendants.
Charles R. Cuneo, P.C., Huntington, NY, for appellants.
Charles R. Cuneo, P.C., Huntington, NY, for appellants.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, BETSY BARROS, JJ.
DECISION & ORDER ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendants Daniel M. Myers and Daliah F. Myers which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against them as abandoned is granted.
The plaintiff commenced this action against the defendants Daniel M. Myers and Daliah F. Myers (hereinafter together the defendants), among others, to foreclose a mortgage. The defendants failed to timely appear or answer the complaint. More than two years after the defendants' default, they moved, inter alia, pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against them as abandoned. The plaintiff did not oppose the motion. By order entered February 25, 2016, the Supreme Court, inter alia, denied that branch of the motion. The defendants appeal.
" CPLR 3215(c) provides that ‘[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned ... unless sufficient cause is shown why the complaint should not be dismissed’ " ( Myoung Ja Kim v. Wilson, 150 A.D.3d 1019, 1020, 55 N.Y.S.3d 334, quoting CPLR 3215[c] ). This statute is strictly construed, as "[t]he language of CPLR 3215(c) is not, in the first instance, discretionary, but mandatory, inasmuch as courts ‘shall’ dismiss claims ( CPLR 3215[c] ) for which default judgments are not sought within the requisite one-year period, as those claims are then deemed abandoned" ( Giglio v. NTIMP, Inc., 86 A.D.3d 301, 307–308, 926 N.Y.S.2d 546 ; see Ibrahim v. Nablus Sweets Corp., 161 A.D.3d 961, 963, 77 N.Y.S.3d 439 ; HSBC Bank USA, N.A. v. Grella, 145 A.D.3d 669, 671, 44 N.Y.S.3d 56 ). The statute further provides, however, that the failure to timely seek a default may be excused if " ‘sufficient cause is shown why the complaint should not be dismissed’ " ( HSBC Bank USA, N.A. v. Grella, 145 A.D.3d at 671, 44 N.Y.S.3d 56, quoting CPLR 3215[c] ; see Ibrahim v. Nablus Sweets Corp., 161 A.D.3d at 963, 77 N.Y.S.3d 439 ). To establish the sufficient cause required by CPLR 3215(c), "the party opposing dismissal must demonstrate that it had a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action" ( Aurora Loan Servs., LLC v. Hiyo, 130 A.D.3d 763, 764, 13 N.Y.S.3d 554 ; see Ibrahim v. Nablus Sweets Corp., 161 A.D.3d at 963, 77 N.Y.S.3d 439 ; Wells Fargo Bank, N.A. v. Bonanno, 146 A.D.3d 844, 845–846, 45 N.Y.S.3d 173 ).
Here, the plaintiff took no proceedings for entry of a default judgment within one year following the defendants' default. Moreover, having failed to oppose the defendants' motion, no reasonable excuse for the plaintiff's delay and a potentially meritorious cause of action was demonstrated.
Accordingly, the Supreme Court should have granted that branch of the defendants' motion which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against them as abandoned.
RIVERA, J.P., CHAMBERS, COHEN and BARROS, JJ., concur.