Opinion
12984 Index No. 850132/13E Case No. 2020-02080
01-28-2021
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR GREENPOINT MORTGAGE FUNDING TRUST MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-AR1, c/o Ocwen Loan Servicing LLC, Plaintiff-Respondent, v. Miriam NUNEZ, Defendant-Appellant, Citibank, N.A., as Indenture Trustee for Certificateholders of Bear Stearns Second Lien Trust 2007-1, Mortgage-Backed Notes, Series 2007-1, et al, Defendants.
Law Office of James Jantarasami, New York (James Jantarasami of counsel), for appellant. Greenberg Traurig, LLP, New York (Ryan Sirianni of counsel), for respondent.
Law Office of James Jantarasami, New York (James Jantarasami of counsel), for appellant.
Greenberg Traurig, LLP, New York (Ryan Sirianni of counsel), for respondent.
Kapnick, J.P., Mazzarelli, Kennedy, Mendez, JJ.
Order, Supreme Court, New York County (Judith N. McMahon, J.), entered December 13, 2018, which denied the motion of defendant Miriam Nunez pursuant to CPLR 3215(c) to dismiss the complaint as abandoned, unanimously affirmed, with costs.
Pursuant to CPLR 3215(c), where a plaintiff fails to move for a default judgment within a year of the defendant's default in answering or appearing, dismissal of the action is required, either upon motion or sua sponte, except where sufficient cause is shown why the complaint should not be dismissed (see Deutsche Bank National Trust Co. v. Cruz, 173 A.D.3d 610 [1st Dept. 2019] ). Sufficient cause requires "a reasonable excuse for the delay in timely moving for a default judgment and to demonstrate that the cause of action is potentially meritorious" ( id. at 610, 102 N.Y.S.3d 601 [internal quotation marks omitted] ). In a mortgage foreclosure action, the requirements of CPLR 3215(c) are satisfied by moving for an order of reference within a year of the default (see U.S. Bank N.A. v. Penate, 176 A.D.3d 758, 760, 110 N.Y.S.3d 156 [2d Dept. 2019] ).
Although plaintiff failed to timely seek an order of reference, its participation in the residential mortgage foreclosure settlement conference before the time to seek an order of reference expired and defendant's multiple repeated bankruptcies constituted a reasonable excuse for the delay (see Citimortgage, Inc. v. Sahai, 172 A.D.3d 552, 101 N.Y.S.3d 306 [1st Dept. 2019] ; cf. HSBC Bank USA, N.A. v. Seidner, 159 A.D.3d 1035, 1036, 74 N.Y.S.3d 282 [2d Dept. 2018] ). While plaintiff did not timely seek an order of reference, plaintiff demonstrated that it did not intend to abandon the action (see Street Snacks, LLC v. Bridge Assoc. of Soho, Inc., 156 A.D.3d 556, 557, 68 N.Y.S.3d 427 [1st Dept. 2017] ; HSBC Bank USA, N.A. v. Hasis, 154 A.D.3d 832, 833, 62 N.Y.S.3d 467 [2d Dept. 2017] ). Further, defendant did not dispute plaintiff's potentially meritorious cause of action or show that she would be prejudiced by the delay.