Opinion
No. 2022-02636 Index No. 711412/15
12-06-2023
U.S. Bank National Association, etc., plaintiff, v. Jacinto Gonzaga, appellant, et al., defendants.
Fadullon Dizon Krul, LLP, Jericho, NY (Juan Paolo F. Dizon and Alexander Krul of counsel), for appellant.
Fadullon Dizon Krul, LLP, Jericho, NY (Juan Paolo F. Dizon and Alexander Krul of counsel), for appellant.
COLLEEN D. DUFFY, J.P. ROBERT J. MILLER PAUL WOOTEN LAURENCE L. LOVE, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Jacinto Gonzaga appeals from an order of the Supreme Court, Queens County (Timothy J. Dufficy, J.), entered April 6, 2022. The order denied that defendant's unopposed motion pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned.
ORDERED that the order is reversed, on the law, without costs or disbursements, and the unopposed motion of the defendant Jacinto Gonzaga pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned is granted.
In November 2015, the plaintiff commenced this action against, among others, the defendant Jacinto Gonzaga (hereinafter the defendant) to foreclose a mortgage on real property located in Queens. The defendant was served with the summons and complaint on November 13, 2015, but did not appear in the action or interpose an answer. In July 2021, the defendant moved pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned. The plaintiff did not oppose the motion. By order entered April 6, 2022, the Supreme Court denied the motion. The defendant appeals.
CPLR 3215(c) provides that "[i]f the plaintiff fails to take proceedings for the entry of judgment within 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" (see Wells Fargo Bank, N.A. v Jackson, 208 A.D.3d 613; HSBC Bank USA, N.A. v Jean, 165 A.D.3d 632, 633-634). "Upon a showing of the requisite one year of delay, dismissal is mandatory in the first instance" (Aurora Loan Servs., LLC v Hiyo, 130 A.D.3d 763, 764; see Giglio v NTIMP, Inc., 86 A.D.3d 301, 307-308). "Failure to take proceedings for entry of judgment may be excused, however, upon a showing of sufficient cause," which requires the plaintiff to "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 at 764; see BAC Home Loans Servicing, L.P. v Bertram, 171 A.D.3d 994, 995; HSBC Bank USA, N.A. v Hasis, 154 A.D.3d 832, 833-834).
Here, contrary to the Supreme Court's determination, since the defendant's motion pursuant to CPLR 3215(c) was made prior to the entry of the order and judgment of foreclosure and sale, the motion was timely (see Federal Natl. Mtge. Assn. v Marty, 219 A.D.3d 581, 583; CitiMortgage, Inc. v Goldstein, 187 A.D.3d 841, 843), and under the circumstances of this case, the defendant was not estopped from making the motion. The defendant was required to interpose an answer by January 11, 2016, and therefore the plaintiff was required to initiate proceedings for the entry of a default judgment against the defendant by January 11, 2017. The plaintiff did not initiate any proceedings against the defendant until January 2, 2020, and failed to oppose the defendant's motion to dismiss on this ground (see Deutsche Bank Natl. Trust Co. v Watson 199 A.D.3d 879, 881). Since the plaintiff failed to demonstrate a reasonable excuse for its delay in taking proceedings for the entry of a default judgment, the court should have granted the defendant's motion pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned (see U.S. Bank N.A. v Moster, 196 A.D.3d 663, 665; Deutsche Bank Natl. Trust Co. v Charles, 186 A.D.3d 454, 457).
DUFFY, J.P., MILLER, WOOTEN and LOVE, JJ., concur.