McCaffrey Attorney at Law, P.C., Jamaica, NY, for appellant.
Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore,
NY (Joseph F. Battista and Lawrence Lambert of counsel), for
REINALDO E. RIVERA, J.P. L. PRISCILLA HALL HECTOR D. LASALLE
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
action to foreclose a mortgage, the defendant Alex Kushnir
appeals, as limited by his brief, from so much of an order of
the Supreme Court, Kings County (Bayne, J.), dated September
3, 2014, as denied that branch of his motion which was
pursuant to CPLR 3215(c) to dismiss the complaint insofar as
asserted against him as abandoned and, sua sponte, directed
the plaintiff to submit an order of reference. The notice of
appeal from an order of reference dated October 16, 2014, is
deemed to be a notice of appeal from the order dated
September 3, 2014 (see CPLR 5512[a]).
that on the Court's own motion, the notice of appeal from
so much of the order dated September 3, 2014, as, sua sponte,
directed the plaintiff to submit an order of reference is
deemed to be an application for leave to appeal from that
portion of the order, and leave to appeal is granted
(see CPLR 5701[c]); and it is further, ORDERED that
the order dated September 3, 2014, is reversed insofar as
appealed from, on the law, with costs, that branch of the
motion of the defendant Alex Kushnir which was pursuant to
CPLR 3215(c) to dismiss the complaint insofar as asserted
against him as abandoned is granted, and the order of
reference dated October 16, 2014, is vacated.
September 2006, Alex Kushnir (hereinafter the defendant)
borrowed the sum of $400, 400 from America's Wholesale
Lender (hereinafter AWL). The loan was evidenced by a note
and secured by a mortgage in favor of Mortgage Electronic
Registration Systems, Inc. (hereinafter MERS), acting solely
as nominee for AWL, encumbering certain real property in
Brooklyn. Thereafter, the note and mortgage were allegedly
assigned to Bank of New York (hereinafter BNY).
August 2007, BNY commenced this action against the defendant,
among others, to foreclose the mortgage. The defendant did
not answer the complaint. However, in October 2007, the
defendant entered into a loan modification agreement.
2014, the defendant moved, inter alia, pursuant to CPLR
3215(c) to dismiss the complaint insofar as asserted against
him as abandoned. BNY opposed the motion and cross-moved to
cancel the notice of pendency and discontinue the action. In
an order dated September 3, 2014, the Supreme Court denied
the motion and the cross motion, and, sua sponte, directed
the plaintiff to submit an order of reference. Subsequently,
the court issued an order of reference dated October 16,
2014. The defendant appeals.
3215(c) provides, with regard to default judgments, in
pertinent part, that "[i]f the plaintiff fails to take
proceedings for the entry of judgment within one year after
the 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." "The
language of CPLR 3215(c) is not, in the first instance,
discretionary, but mandatory, inasmuch as courts shall'
dismiss claims (CPLR 3215[c]) for which default judgments are
not sought within the requisite one-year period, as those
claims are then deemed abandoned" (Giglio v NTIMP,
Inc., 86 A.D.3d 301, 307-308; see Butindaro v
Grinberg, 57 A.D.3d 932; DuBois v Roslyn Natl. Mtge.
Corp., 52 A.D.3d 564, 565; County of Nassau v
Chmela, 45 A.D.3d 722, 722; Kay Waterproofing Corp.
v Ray Realty Fulton, Inc., 23 A.D.3d 624, 625).
"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'" (Giglio v NTIMP, Inc., 86
A.D.3d at 308, quoting CPLR 3215[c]). "This Court has
interpreted this language as requiring both a reasonable
excuse for the delay in timely moving for a default judgment,
plus a demonstration that the cause of action is potentially
meritorious" (Giglio v NTIMP, Inc., 86 A.D.3d
at 308; see Pipinias v J. Sackaris & Sons, Inc.,
116 A.D.3d 749, 751-752; Ryant v Bullock, 77 A.D.3d
811, 811; Solano v Castro, 72 A.D.3d 932, 932-933).
in opposing the defendant's motion, BNY did not offer an
excuse for never seeking to enter a default judgment and,
instead, belatedly sought to discontinue the action. In any
event, BNY, in opposing the defendant's motion, failed to
demonstrate that it had a potentially meritorious cause of
action (cf. Citimortgage, Inc. v Noel, 145 A.D.3d
957; U.S. Bank, N.A. v Razon, 115 A.D.3d 739, 740).
Under the circumstances, the Supreme Court should have
granted that branch of the defendant's motion which was
to dismiss the complaint insofar as asserted against him as
of our determination, we need not reach the ...