Submitted - October 2, 2017
Jasbrinder Sahni, White Plains, NY, for appellants.
Polowy, LLC (Reed Smith, LLP, New York, NY [Andrew B. Messite
and Joseph B. Teig], of counsel), for respondent.
C. BALKIN, J.P. JOSEPH J. MALTESE BETSY BARROS FRANCESCA E.
DECISION & ORDER
action to foreclose a mortgage, the defendants Marina Roldan
and Richard Roldan appeal (1), as limited by their brief,
from so much of an order of the Supreme Court, Putnam County
(Grossman, J.), dated April 23, 2015, as, upon reargument,
granted the plaintiffs motion for leave to enter a judgment
of foreclosure and sale, upon their default in answering the
complaint, and denied their cross motion pursuant to CPLR
3215(c) to dismiss the complaint as abandoned, (2) from an
order of the same court dated October 16, 2015, which denied
their motion for leave to renew their prior motion, in
effect, to vacate their default in answering the complaint,
and to dismiss the complaint, inter alia, for lack of
standing, which had been denied in an order of that court
dated September 1, 2009, and (3) from a judgment of
foreclosure and sale of the same court dated October 16,
2015, which, upon the orders, is in favor of the plaintiff
and against them, confirming a referee's report and
directing the sale of the subject property.
that the appeals from the orders dated April 23, 2015, and
October 16, 2015, are dismissed; and it is further, ORDERED
that the judgment of foreclosure and sale is affirmed; and it
is further, ORDERED that one bill of costs is awarded to the
appeals from the orders dated April 23, 2015, and October 16,
2015, must be dismissed because the right of direct appeal
therefrom terminated with the entry of the judgment of
foreclosure and sale (see Matter of Aho, 39 N.Y.2d
241, 248). The issues raised on the appeals from those orders
are brought up for review and have been considered on the
appeal from the judgment of foreclosure and sale (see CPLR
to the appellants' contention, upon reargument, the
Supreme Court properly granted the plaintiffs motion for
leave to enter a default judgment of foreclosure and sale.
The plaintiff demonstrated its entitlement to a default
judgment by submitting proof of service of a copy of the
summons and complaint, proof of the facts constituting the
causes of action, and proof that neither the appellants nor
the other defendant appeared or answered the complaint within
the time allowed (see RPAPL 1321; CPLR 3215[f]; HSBC
Bank USA v Angeles, 143 A.D.3d 671; HSBC Bank USA,
N.A. v Traore, 139 A.D.3d 1009; Loancare v
Carter, 139 A.D.3d 817; TCIFREO GCM, LLC v
Walker, 139 A.D.3d 704; US Bank N.A. v Gulley,
137 A.D.3d 1008).
contrary to the appellants' contention, dismissal of the
action pursuant to CPLR 3215(c) was unwarranted. 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." "It 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 Dorestant, 131 A.D.3d 467, 469; see Wells Fargo
Bank, N.A. v Daskal, 142 A.D.3d 1071, 1072).
"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' to establish that it 'initiated
proceedings for entry of a judgment within one year of the
default' for the purposes of satisfying CPLR
3215(c)" (HSBC Bank USA, N.A. v Traore, 139
A.D.3d at 1010, quoting Wells Fargo Bank, N.A. v
Combs, 128 A.D.3d 812, 813; see Klein v St. Cyprian
Props., Inc., 100 A.D.3d 711, 712). Here, the plaintiff
initiated proceedings for the entry of a default judgment on
or about June 26, 2009, within one year of the
appellants' default and, thus, did not abandon this
action (see CPLR 3215[c]; HSBC Bank USA, N.A. v
Traore, 139 A.D.3d at 1011; US Bank N.A. v
Dorestant, 131 A.D.3d at 469; Wells Fargo Bank, N.A.
v Combs, 128 A.D.3d at 813).
appellants waived their contention that the plaintiff lacked
standing to commence the action by failing to raise the issue
in an answer or a timely pre-answer motion to dismiss (see
Citigroup v Kopelowitz, 147 A.D.3d 1014, 1015;
Wells Fargo Bank Minn., N.A. v Mastropaolo, 42
A.D.3d 239, 244-245).
appellants' remaining contentions are without merit.
the Supreme Court properly, upon the orders, confirmed the
Referee's report and directed ...