Opinion
2015-01458. Index No. 7582/07.
08-16-2017
WASHINGTON MUTUAL BANK, FA, appellant, v. Marie Duliane MILFORD–JEAN–GILLE, respondent, et al., defendants.
Buckley Madole, P.C., New York, NY (Richard P. Haber of counsel), for appellant. Biolsi Law Group, P.C., New York, NY (Steven Alexander Biolsi of counsel), for respondent.
Buckley Madole, P.C., New York, NY (Richard P. Haber of counsel), for appellant.
Biolsi Law Group, P.C., New York, NY (Steven Alexander Biolsi of counsel), for respondent.
LEONARD B. AUSTIN, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, and FRANCESCA E. CONNOLLY, JJ.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Knipel, J.), dated September 3, 2014, which denied its motion to vacate an order of the same court dated July 23, 2013, among other things, sua sponte, directing dismissal of the action pursuant to CPLR 3215(c) as abandoned, and to restore the action to the trial calendar.
ORDERED that the order dated September 3, 2014, is reversed, on the law, with costs, and the plaintiff's motion to vacate the order dated July 23, 2013, and to restore the action to the trial calendar is granted.
The plaintiff's predecessor-in-interest, CitiMortgage, Inc. (hereinafter Citi), commenced this foreclosure action on March 5, 2007. The defendant Marie Duliane Milford–Jean–Gille, the mortgagor (hereinafter the defendant), neither timely answered nor moved to dismiss the action. Thereafter, in December 2007, the plaintiff moved, inter alia, for an order of reference, and the Supreme Court denied that motion with leave to renew. In November 2008, the plaintiff moved, among other things, for leave to enter a default judgment, an order of reference, and to amend the caption to substitute the plaintiff in place of Citi, and the court granted the motion.
In September 2010, the plaintiff moved to confirm the referee's report of amount due and for leave to enter a default judgment of foreclosure and sale, but later withdrew that motion. After a status conference, in an order dated July 23, 2013, the Supreme Court, sua sponte, directed dismissal of the action as abandoned pursuant to CPLR 3215(c) and cancellation of the notice of pendency. In September 2013, the plaintiff moved to vacate the order dated July 23, 2013, and to restore the action to the calendar. In the order appealed from dated September 3, 2014, the court denied the motion. The plaintiff appeals, and we reverse.
"[A]s long as ‘proceedings' are being taken, and these proceedings manifest an intent not to abandon the case but to seek a judgment, the case should not be subject to dismissal" ( Brown v. Rosedale Nurseries, 259 A.D.2d 256, 257, 686 N.Y.S.2d 22 [internal quotation marks omitted]; see Wells Fargo Bank, N.A. v. Daskal, 142 A.D.3d 1071, 1073, 37 N.Y.S.3d 353 ; U.S. Bank N.A. v. Dorestant, 131 A.D.3d 467, 469, 15 N.Y.S.3d 142 ; Wells Fargo Bank, N.A. v. Combs, 128 A.D.3d 812, 813, 10 N.Y.S.3d 121 ), "even if the plaintiff's motion is later withdrawn" ( Aurora Loan Servs., LLC v. Gross, 139 A.D.3d 772, 773, 32 N.Y.S.3d 249 ; see HSBC Bank USA, N.A. v. Alexander, 124 A.D.3d 838, 839, 4 N.Y.S.3d 47 ).
Here, the plaintiff initiated proceedings for entry of the default judgment of foreclosure and sale within one year of the defendant's default (see CPLR 3215[c] ; Wells Fargo Bank, N.A. v. Daskal, 142 A.D.3d at 1073, 37 N.Y.S.3d 353; U.S. Bank N.A. v. Dorestant, 131 A.D.3d at 469, 15 N.Y.S.3d 142 ; Wells Fargo Bank, N.A. v. Combs, 128 A.D.3d at 813, 10 N.Y.S.3d 121 ; Mortgage Elec. Registration Sys., Inc. v. Smith, 111 A.D.3d 804, 806, 975 N.Y.S.2d 121 ; Jones v. Fuentes, 103 A.D.3d 853, 853, 962 N.Y.S.2d 263 ; Klein v. St. Cyprian Props., Inc., 100 A.D.3d 711, 712, 954 N.Y.S.2d 170 ), thereby demonstrating that it did not abandon the action (see Wells Fargo Bank, N.A. v. Daskal, 142 A.D.3d at 1073, 37 N.Y.S.3d 353; Aurora Loan Servs., LLC v. Gross, 139 A.D.3d at 774, 32 N.Y.S.3d 249 ). Accordingly, the Supreme Court erred in, sua sponte, directing dismissal of the action pursuant to CPLR 3215(c) and cancellation of the notice of pendency (see e.g. Citimortgage, Inc. v. Espinal, 136 A.D.3d 857, 859, 26 N.Y.S.3d 541 ; HSBC Bank USA, N.A. v. Alexander, 124 A.D.3d at 839, 4 N.Y.S.3d 47 ; Emigrant Mtge. Co., Inc. v. Gosdin, 119 A.D.3d 639, 640, 989 N.Y.S.2d 609 ).
Additionally, the defendant waived the issue of the plaintiff's standing by failing to timely answer or appear (see Wells Fargo Bank, N.A. v. Combs, 128 A.D.3d at 813, 10 N.Y.S.3d 121 ; JP Morgan Mtge. Acquisition Corp. v. Hayles, 113 A.D.3d 821, 822, 979 N.Y.S.2d 620 ; Deutsche Bank Natl. Trust Co. v. Hussain, 78 A.D.3d 989, 990, 912 N.Y.S.2d 595 ).
The defendant's remaining contentions are without merit.