Opinion
2020–02349 Index No. 6810/09
03-15-2023
WELLS FARGO BANK, N.A., etc., respondent, v. Guillermo LOPEZ, appellant, et al., defendants.
Charles Wallshein, Melville, NY, for appellant. Hinshaw & Culbertson, LLP, New York, NY (Fernando C. Rivera–Maissonet and Schuyler B. Kraus of counsel), for respondent.
Charles Wallshein, Melville, NY, for appellant.
Hinshaw & Culbertson, LLP, New York, NY (Fernando C. Rivera–Maissonet and Schuyler B. Kraus of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., ROBERT J. MILLER, PAUL WOOTEN, LILLIAN WAN, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendant Guillermo Lopez appeals from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered December 20, 2019. The order granted the plaintiff's motion pursuant to CPLR 5015(a) to vacate an order of the same court (Kathryn D. Hopkins, Ct. Atty. Ref.) dated September 12, 2012, sua sponte, directing dismissal of the complaint as abandoned pursuant to CPLR 3215(c), and to restore the action to the active calendar.
ORDERED that the order entered December 20, 2019, is affirmed, with costs.
In March 2005, the defendant Guillermo Lopez (hereinafter the defendant) executed a note in the sum of $379,040, which was secured by a mortgage against certain real property in Levittown. In April 2009, the plaintiff commenced this action to foreclose the mortgage against, among others, the defendant. The defendant failed to appear or answer the complaint. In an order dated March 26, 2010, the Supreme Court granted the plaintiff's motion, among other things, for an order of reference. In an order dated September 12, 2012, the court, sua sponte, directed dismissal of the complaint as abandoned pursuant to CPLR 3215(c). In August 2019, the plaintiff moved pursuant to CPLR 5015(a) to vacate the order dated September 12, 2012, and to restore the action to the active calendar. In an order entered December 20, 2019, the court granted the plaintiff's 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." However, "[i]t is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant to CPLR 3215(c)" ( U.S. Bank, N.A. v. Stiene, 203 A.D.3d 985, 986–987, 165 N.Y.S.3d 580 ; see National City Mtge. Co. v. Sclavos, 172 A.D.3d 884, 885, 99 N.Y.S.3d 430 ). "Rather, it is enough that the plaintiff timely takes the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference within one year of the default" ( U.S. Bank, N.A. v. Stiene, 203 A.D.3d at 987, 165 N.Y.S.3d 580 ; see American Home Mtge. Acceptance, Inc. v. Lubonty, 188 A.D.3d 767, 768–769, 136 N.Y.S.3d 130 ). "As long as the plaintiff has initiated proceedings for the entry of a judgment within one year of the default, there is no basis for dismissal of the complaint pursuant to CPLR 3215(c)" ( National City Mtge. Co. v. Sclavos, 172 A.D.3d at 885, 99 N.Y.S.3d 430 ).
Here, within one year after the defendant's default, the plaintiff took the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference, and thus, the plaintiff did not abandon the action within the meaning of CPLR 3215(c) (see U.S. Bank, N.A. v. Stiene, 203 A.D.3d at 987, 165 N.Y.S.3d 580 ; US Bank, NA v. Chime, 185 A.D.3d 754, 756, 127 N.Y.S.3d 128 ; US Bank, N.A. v. Picone, 170 A.D.3d 1070, 1072, 96 N.Y.S.3d 671 ). Since dismissal of the action under CPLR 3215(c) was unwarranted, the Supreme Court properly granted the plaintiff's motion to vacate the order dated September 12, 2012, and to restore the action to the active calendar (see U.S. Bank, N.A. v. Stiene, 203 A.D.3d at 987, 165 N.Y.S.3d 580 ; National City Mtge. Co. v. Sclavos, 172 A.D.3d at 885–886, 99 N.Y.S.3d 430 ; US Bank, N.A. v. Picone, 170 A.D.3d at 1072, 96 N.Y.S.3d 671 ).
The defendant's remaining contentions are without merit.
CONNOLLY, J.P., MILLER, WOOTEN and WAN, JJ., concur.