C. Silverberg, PLLC, Uniondale NY, for appellant.
Polowy, LLC (Reed Smith, LLP [Andrew B. Messite and Joseph B.
Teig], of counsel), for respondent.
DECISION & ORDER
action to foreclose a mortgage, the defendant Rose I. Onuoha
appeals from an order of the Supreme Court, Queens County
(Denis J. Butler, J.), dated. The order, insofar as appealed
from, granted those branches of the plaintiff's motion
which were for an order of reference and to hold the
defendant Rose I. Onuoha in default upon her failure to
timely appear or answer the complaint.
that the order is reversed insofar as appealed from, on the
law and in the exercise of discretion, with costs, those
branches of the plaintiff's motion which were for an
order of reference and to hold the defendant Rose I. Onuoha
in default upon her failure to timely appear or answer the
complaint are denied, and the complaint is dismissed as
abandoned pursuant to CPLR 3215(c) insofar as asserted
against the appellant.
15, 2006, the defendant Rose I. Onuoha (hereinafter the
appellant) executed a promissory note in the amount of $400,
000 in favor of Professional Mortgage Bankers Corp. As
security for the note, the appellant executed a mortgage in
favor of Mortgage Electronic Registration Systems, Inc.
(hereinafter MERS), acting as nominee for Professional
Mortgage Bankers Corp., encumbering real property. She
allegedly defaulted by failing to make the monthly
installment payments starting on February 1, 2008. A default
notice was sent to the appellant on or about May 25, 2008.
2008, MERS assigned the mortgage to the plaintiff, and the
plaintiff commenced the instant mortgage foreclosure action.
The appellant, appearing pro se, served an answer by mail on
September 15, 2008. The appellant's answer was rejected
as untimely on the ground that her time to answer expired on
September 10, 2008. In July 2011, the appellant filed a pro
se notice of appearance, which was also rejected by the
plaintiff as untimely.
2013, the plaintiff moved for an order of reference and to
hold the appellant in default upon her failure to timely
appear or answer the complaint. In support of the motion, the
plaintiff submitted, inter alia, an affidavit of a vice
president of loan documentation at the loan servicer,
asserting, inter alia, that the plaintiff was in possession
of the note, and that the appellant had defaulted in making
payments. In opposition, the appellant argued, inter alia,
that the motion for an order of reference and to hold her in
default was untimely since more than one year had passed
since the appellant's default (see CPLR
3215[c]), and the plaintiff lacked standing to bring the
plaintiff, in reply, claimed there were reasonable excuses
for the delay of nearly five years between the
appellant's default and the plaintiff's motion. The
plaintiff's current attorney submitted an affirmation
stating that, "upon information and belief," its
former attorney placed the matter "on hold" from
April 4, 2009, until May 26, 2009, and again from August 28,
2009, until January 4, 2010, while the appellant was being
reviewed for loss mitigation options, and on February 11,
2010, the case was put on hold yet again to explore the
possibility of loan modification. From October 15, 2010,
until November 14, 2011, the plaintiff was involved in active
litigation with one of the appellant's codefendants, who
claimed that the subject property was fraudulently conveyed
to the appellant. The law firm that previously represented
the plaintiff was closed, and the matter was referred to
current counsel in December 2011. In October 2012, the case
was put on hold for 90 days because the subject property was
in a federal disaster area as a result of Hurricane Sandy.
The plaintiff further argued that the issue of standing was
waived, on the ground that the appellant defaulted in
appearing and answering. In the order appealed from, the
plaintiff's motion was granted. We reverse the order
insofar as appealed from.
3215(c) provides: "If 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, since it states that the court
"shall" dismiss if proceedings to enter a default
judgment are not taken within one year (see HSBC Bank
USA, N.A. v Grella, 145 A.D.3d 669, 671). However,
failure to timely seek a default judgment may be excused if
the plaintiff proffers a reasonable excuse for the delay in
moving for a default judgment and demonstrates that the cause
of action is potentially meritorious (see id. at
674; Maspeth Fed. Sav. & Loan Assn. v Brooklyn
Heritage, LLC, 138 A.D.3d 793; Pipinias v J.
Sackaris & Sons, Inc., 116 A.D.3d 749,
751-752)." 'The determination of whether an excuse
is reasonable in any given instance is committed to the sound
discretion of the motion court'" (Pipinias v J.
Sackaris & Sons, Inc., 116 A.D.3d at 752, quoting
Giglio v NTIMP, Inc., 86 A.D.3d 301, 308).
the allegations of the plaintiff were conclusory and
unsubstantiated. The allegations with respect to why the
plaintiff's former attorney did not seek a default
judgment against the appellant were not supported with
evidence in admissible form by a person with personal
knowledge of the facts. Further, there is no explanation as
to why the litigation with the codefendant was a ground to
delay seeking a default judgment against the appellant, whose
liability was based not only upon her alleged interest in the
property, but also her obligation under the note, which did
not involve the codefendant (see Pipinias v J. Sackaris
& Sons, Inc., 116 A.D.3d at 752).
parties' remaining contentions need not be addressed in
light of our determination.
under the circumstances of this case, the Supreme Court
should have denied those branches of the plaintiff's
motion which were for an order of reference and to hold the
appellant in default upon her failure to timely appear or
answer the complaint, and dismissed the complaint as
abandoned pursuant to CPLR 3215(c) insofar as asserted
against the appellant (see NYCTL 2009-A Trust v Kings
Hwy. Realty Co., 147 A.D.3d 866).
by the respondent to strike certain portions of the
appellant's reply brief on an appeal from an order of the
Supreme Court, Queens County, dated, on the ground that they
improperly raise issues for the first time in reply, refer to
matter dehors the record, and are not responsive to the
issues raised in the respondent's brief. By decision and
order on motion of this court dated June 16, 2017, the motion
was held in abeyance and was referred to the panel of
Justices hearing the appeal for determination upon the
argument or submission thereof.
the papers filed in support of the motion and the papers
filed in opposition thereto, and upon ...