Petroff Amshen LLP, Brooklyn (James Tierney of counsel), for
Lovells U.S. LLP, New York (David Dunn of counsel), for
J.P., Sweeny, Manzanet-Daniels, Gische, Gesmer, JJ.
from decision, Supreme Court, Bronx County (Sharon A.M.
Aarons, J.), entered September 30, 2014, deemed appeal from
order (same court and Justice), entered December 12, 2014,
which granted plaintiff's motion for an order appointing
a referee to ascertain the amount due to it (see
CPLR 5520[c]), and so considered, said order unanimously
affirmed, without costs.
court correctly found that plaintiff took "proceedings
for the entry of judgment within one year after the
defendant's default" (see CPLR 3215[c]).
Plaintiff made its first application for an order of
reference within the statutory time limitation. The fact that
this application was denied because plaintiff attempted to
withdraw it without prejudice is of no moment, since the
statute merely requires that the party needs only to initiate
proceedings, "and these proceedings manifest an intent
not to abandon the case" (Brown v Rosedale
Nurseries, 259 A.D.2d 256, 257 [1st Dept 1999], quoting
7 Weinstein-Korn-Miller, NY Civ Prac ¶ 3215.14).
Plaintiff clearly and unequivocally indicated that it
intended to continue the prosecution of this case at the time
it made its motion for a reference. Such a timely application
"even if unsuccessful" will not result in the
dismissal of the complaint "as abandoned pursuant to
CPLR 3215(c)" (Deutsche Bank Natl. Trust Co. v
Pascarella, 39 Misc.3d 1227[A], 2013 NY Slip Op 50777[U], *3
[Sup Ct, Suffolk County 2013]); see also U.S. Bank N.A. v
Poku, 118 A.D.3d 980, 981 [2d Dept 2014]).
plaintiff has complied with CPLR 3215(c), we need not address
defendant's arguments that plaintiff failed to
demonstrate a reasonable excuse for the alleged delay and
that it has a meritorious cause of action.
also satisfied CPLR 3215(f). "The record contain[s]
absolutely no evidence to dispute... plaintiff's claim
that... defendant... defaulted on the mortgage"
(First Nationwide Bank v Pretel, 240 A.D.2d 629');">240 A.D.2d 629 [2d
Dept 1997]). Indeed, defendant admitted as much.
court providently exercised its discretion (see Carroll v
Nostra Realty Corp., 54 A.D.3d 623');">54 A.D.3d 623 [1st Dept 2008],
lv dismissed 12 N.Y.3d 792');">12 N.Y.3d 792 ) by declining to
vacate defendant's default and permit him to file a late
axiomatic that "[a] party seeking to vacate a default
must demonstrate both a reasonable excuse and the existence
of a meritorious defense" (Mutual Mar. Off., Inc. v
Joy Constr. Corp., 39 A.D.3d 417, 419 [1st Dept 2007].
Defendant's contentions that it was reasonable for him
not to have answered the complaint in autumn 2009 because he
(1) believed the complaint was part of the loan modification
process and (2) was unfamiliar with the legal system are not
sufficient to demonstrate a reasonable excuse for his
that the summons clearly warned that defendant had to answer
or risk losing the subject building, his belief that the
complaint was part of a loan modification process was
unreasonable (see Chase Home Fin., LLC v Minott, 115
A.D.3d 634, 634-635 [2d Dept 2014]; see also Kouzios v
Dery, 57 A.D.3d 949, 950 [2d Dept 2008] ["the
Supreme Court providently exercised its discretion in
rejecting the defendant's... claim that he assumed that
he did not need to answer the complaint because of purported
settlement negotiations"]). In his affidavit, defendant
admits that the servicing company he contacted concerning a
potential modification of the mortgage refused to give him a
final modification and in fact, returned the partial payments
he had made. He further admitted a second company he hired to
help him "did not seem to do anything". To now
claim that he was under the impression that a summons and
complaint part of a modification process defies credibility.
his excuse that he was unfamiliar with the legal system is
insufficient (see U.S. Bank N.A. v Slavinski, 78
A.D.3d 1167 [2d Dept 2010]). "This is especially so in
view of the fact that the summons which was served upon
[defendant]... [warned him]... that [he] must respond by
serving a copy of the answer' or risk the loss of [his]
home" (Chase Home Fin., LLC v Minott, 115
A.D.3d at 634-635]. Notably, the language of the summons in
Minott is the same as the summons in this case.
of defendant's failure to demonstrate a reasonable excuse
for his default, we need not determine whether he
demonstrated a potentially meritorious defense (Bank of
N.Y. Mellon v Izmirligil, 88 A.D.3d 930, 931-932 [2d
Decision and Order of this Court entered herein on May 3,
2016 is hereby recalled and vacated (see ...