Opinion
627 CA 19-01243
10-09-2020
U.S. BANK, NATIONAL ASSOCIATION, Plaintiff-Appellant, v. Phyllis J. REAMER, Defendant-Respondent et al., Defendants.
RAS BORISKIN, LLC, WESTBURY (LEAH LENZ OF COUNSEL), FOR PLAINTIFF-APPELLANT.
RAS BORISKIN, LLC, WESTBURY (LEAH LENZ OF COUNSEL), FOR PLAINTIFF-APPELLANT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this mortgage foreclosure action, plaintiff appeals from an order of Supreme Court that denied its motion to vacate an order of the same court, which had, sua sponte, dismissed the complaint as abandoned. We affirm.
"If [a] plaintiff fails to take proceedings for the entry of judgment in one year after [a] default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed" ( CPLR 3215 [c] ). "The one exception to the otherwise mandatory language of CPLR 3215 (c) is that the failure to timely seek a default on an unanswered complaint or counterclaim may be excused if sufficient cause is shown why the complaint should not be dismissed" ( BAC Home Loans Servicing, L.P. v. Bertram , 171 A.D.3d 994, 995, 98 N.Y.S.3d 311 [2d Dept. 2019] [internal quotation marks omitted]; see Zenzillo v. Underwriters at Lloyd's London , 78 A.D.3d 1540, 1541, 910 N.Y.S.2d 722 [4th Dept. 2010] ). In order to establish " ‘sufficient cause,’ plaintiff was required to present a valid excuse for [its] delay in proceeding with the action and to demonstrate a meritorious claim" ( Morton v. Morton , 136 A.D.2d 902, 902, 524 N.Y.S.2d 928 [4th Dept. 1988] ; see BAC Home Loans Servicing, L.P. , 171 A.D.3d at 995, 98 N.Y.S.3d 311 ).
Here, plaintiff failed to initiate proceedings for the entry of a default judgment within one year of the default, and indeed had not "taken the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference within one year of the defendant's default" ( BAC Home Loans Servicing, LP v. Maestri , 134 A.D.3d 1593, 1593, 21 N.Y.S.3d 925 [4th Dept. 2015] ; cf. HSBC Bank USA, N.A. v. Alexander , 124 A.D.3d 838, 839, 4 N.Y.S.3d 47 [2d Dept. 2015] ). Plaintiff's proffered excuses for its delay failed to explain the multi-year delay in seeking a default judgment, and thus plaintiff failed to establish sufficient cause regardless of whether plaintiff established that it had a potentially meritorious claim (see Bank of Am., N.A. v. Santos , 175 A.D.3d 449, 451, 106 N.Y.S.3d 162 [2d Dept. 2019] ; see generally Wells Fargo Bank, N.A. v. Dysinger , 149 A.D.3d 1551, 1552, 52 N.Y.S.3d 788 [4th Dept. 2017] ).