- October 13, 2017
Suslovich & Klein, LLP, Brooklyn, NY (Mark M. Kranz of
counsel), for appellant.
Office of Yuriy Moshes, P.C., Brooklyn, NY (Rebecca Carmen of
counsel), for respondents.
WILLIAM F. MASTRO, J.P. L. PRISCILLA HALL ROBERT J. MILLER
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
action to foreclose a mortgage, the plaintiff appeals, as
limited by its brief, from (1) so much of an order of the
Supreme Court, Kings County (Walker, J.), dated October 24,
2014, as denied those branches of its motion which were for
summary judgment on the complaint and for an order of
reference, and (2) so much of an order of the same court
dated September 30, 2015, as denied those branches of its
motion which were for leave to enter a default judgment and
for an order of reference, and granted that branch of the
cross motion of the defendants Khadija Begum and Mohammad
Nawaz which was pursuant to CPLR 3215(c) to dismiss the
complaint insofar as asserted against them as abandoned.
that the orders are affirmed insofar as appealed from, with
one bill of costs.
August 2007, the defendant Khadija Begum (hereinafter the
defendant) executed and delivered to Wachovia Bank, National
Association, a note and mortgage. In December 2010, Wells
Fargo Bank, N.A. (hereinafter Wells Fargo), as successor to
the original lender, commenced this action to foreclose the
mortgage against the defendant and others. The defendant was
served with the summons and complaint on December 30, 2010.
She did not file an answer or move to dismiss the complaint,
but did formally appear in the action by her attorneys, who
filed a notice of appearance. After the commencement of the
action, the note and mortgage were assigned to JBBNY, LLC,
which was substituted as the plaintiff.
plaintiff moved, inter alia, for summary judgment on the
complaint and for an order of reference. The Supreme Court
denied those branches of the motion. Thereafter, the
plaintiff moved, inter alia, for leave to enter a default
judgment and for an order of reference. The defendant and the
defendant Mohammad Nawaz (hereinafter together the
defendants) cross-moved, inter alia, pursuant to CPLR 3215(c)
to dismiss the complaint insofar as asserted against them as
abandoned. The court denied the plaintiff s motion and
granted that branch of the defendants' cross motion. The
to the plaintiffs contention, the Supreme Court properly
denied those branches of its motion which were for summary
judgment on the complaint and for an order of reference.
"A motion for summary judgment may not be made before
issue is joined (CPLR 3212[a])and the requirement is strictly
adhered to" (City of Rochester v Chiarella,
65N.Y.2d92, 101; see Lindbergh v SHLO 54, LLC, 128
A.D.3d 642, 644; Gaskin v Harris, 98 A.D.3d 941,
942). Where, as here, a defendant has served a notice of
appearance, but has not served "a responsive pleading,
'' in this case, an answer (see CPLR 3011), issue has
not been joined, and the plaintiff is barred from seeking
summary judgment (see 115-41 St. Albans Holding Corp. v
Estate of Harrison, 71 A.D.3d 653; Alexandru v
Pappas, 68 A.D.3d 690, 691; Union Turnpike Assoc.,
LLC v Getty Realty Corp., 27 A.D.3d 725, 727).
Accordingly, the court was powerless to grant summary
judgment (see Gaskin v Harris, 98 A.D.3d at 942).
Supreme Court providently exercised its discretion in
rejecting the plaintiffs arguments in opposition to that
branch of the defendants' cross motion which was pursuant
to CPLR 3215(c) to dismiss the complaint insofar as asserted
against them as abandoned. CPLR 3215(a) provides that
"[w]hen a defendant has failed to appear, plead or
proceed to trial... the plaintiff may seek a default judgment
against him [or her]." However, pursuant to CPLR
3215(c), "[i]f the plaintiff fails to take proceedings
for the entry of judgment within one year after [a
defendant's] default, the court shall not enter judgment
but shall dismiss the complaint as abandoned . . . 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; see Myoung Ja Kim v Wilson, 150 A.D.3d
1019, 1020; Pipinias v J. Sackaris & Sons, Inc.,
116 A.D.3d 749, 751). "Failure to take proceedings for
entry of judgment may be excused, however, upon a showing of
sufficient cause, " which requires the plaintiff to
"demonstrate that it had a reasonable excuse for the
delay in taking proceedings for entry of a default judgment
and that it has a potentially meritorious action"
(Aurora Loan Servs., LLC v Hiyo, 130 A.D.3d 763,
764; see Myoung Ja Kim v Wilson, 150 A.D.3d at 1020;
HSBC Bank USA, N.A. v Grella, 145 A.D.3d 669, 671;
Pipinias v J. Sackaris & Sons, Inc. , 116 A.D.3d
the defendants were served with the summons and complaint on
December 30, 2010. The defendant had "twenty days after
service of the summons" to appear "by serving an
answer or a notice of appearance, or by making a motion which
has the effect of extending the time to answer''
(CPLR 320[a]). As the court stated, and the parties do not
dispute, the plaintiffs time to bring a motion for leave to
enter a default judgment expired on February 3, 2012, a year
after the defendants' default, but the plaintiff did not
make such a motion until January 2015.
plaintiff contends that the "sufficient cause
shown" standard was met by the "significant
delay" caused by an improper stipulation of
discontinuance that was filed on February 22, 2013, and the
proceedings it had to take to obtain an order dated August
15, 2013, vacating the stipulation and restoring the action
to the calendar. However, as the Supreme Court noted, actions
taken in 2013 and thereafter "offer no excuse as to why
no action was taken within one year of the default, as
required by statute." In fact, this Court has held that
"[a]n excuse which matures after the expiration of the
statutory limit for entering a default judgment with the
Clerk is legally insufficient to justify a plaintiffs failure
to enter the default judgment" (Monzon v Sony
Motor, 115 A.D.2d 714, 715; see Mattera v
Capric, 54 A.D.3d 827, 828; Rafiq v Weston, 171
A.D.2d 783, 784). For the same reason, there is no merit to
the plaintiffs argument that the same proceedings in 2013
established that it had not abandoned the action (cf.
Aurora Loan Servs., LLC v Gross, 139 A.D.3d 772, 773;
US Bank N.A. v Dorestant, 131 A.D.3d 467, 469;
Brown v Rosedale Nurseries, 259 A.D.2d 256, 257).
the Supreme Court properly granted that branch of the
defendants' cross motion which was to dismiss the
complaint insofar as asserted against them as abandoned, and
denied those branches of the plaintiffs motion which were ...