Pascazi Law Offices PLLC, Fishkill (Michael S. Pascazi of
counsel), for appellant.
Boriskin, LLC, Westbury (Lea Lenz of counsel), for
Before: Lynch, J.P., Clark, Devine and Pritzker, JJ.
from an order of the Supreme Court (Gilpatric, J.), entered
March 30, 2018 in Ulster County, which, among other things,
granted plaintiff's motion for a default judgment.
John Ethan Rahl (hereinafter defendant) executed a promissory
note in the amount of $220, 000 in favor of plaintiff that
was secured by a mortgage on certain real property in Ulster
County. After defendant failed to make timely payments due
under the note, plaintiff, in September 2010, commenced this
mortgage foreclosure action against him, among others.
Defendant failed to answer or otherwise appear in the action.
In March 2017, plaintiff moved for, among other things, a
default judgment and an order of reference. Defendant opposed
the motion and cross-moved for, among other things, dismissal
of the complaint under CPLR 3215 (c). In a March 2018 order,
Supreme Court granted plaintiff's motion and denied
defendant's cross motion. Defendant appeals.
3215 (c) provides 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."
"[A] plaintiff seeking to avoid dismissal under CPLR
3215 (c) 'must demonstrate a reasonable excuse for the
delay and that the cause of action has merit'"
(Micheli v E.J. Builders, 268 A.D.2d 777, 779
, quoting Thompson v Cohen, 160 A.D.2d 1157,
defendant was in default beginning in October 2010, plaintiff
did not move for a default judgment until March 2017.
Plaintiff offered myriad reasons for this lengthy delay,
including the need to comply with Administrative Order
431/11, the cessation of practice by plaintiff's initial
counsel, a temporary moratorium on foreclosure actions due to
Hurricane Sandy, plaintiff's retainer of new counsel, the
withdrawal of defendant's counsel and the parties'
participation in mandatory settlement conferences. Even if we
were to conclude that, together, these events constituted a
reasonable excuse for plaintiff's delay, the record
reveals that the last event the final mandatory settlement
conference concluded in late January 2016. Plaintiff still
waited more than a year before moving in March 2017 for a
default judgment. Because plaintiff failed to provide any
excuse for the delay between January 2016 and March 2017,
Supreme Court should have denied plaintiff's motion and
granted defendant's cross motion to dismiss pursuant to
CPLR 3215 (c) (see HSBC Bank USA, N.A. v Guevara,
170 A.D.3d 684, 685-686 ; Wells Fargo Bank, N.A. v
Bonanno, 146 A.D.3d 844, 846 ; see generally
Wells Fargo Bank, N.A. v Eitani, 148 A.D.3d 193, 198-199
, appeal dismissed 29 N.Y.3d 1023');">29 N.Y.3d 1023 ). In
view of our determination, defendant's remaining
contentions are rendered academic.
J.P., Devine and Pritzker, JJ., concur.
that the order is reversed, on the law, with costs,
plaintiff's motion denied, defendant John Ethan
Rahl's cross motion granted and complaint dismissed,
 We have been advised that, during the
pendency of this appeal, Supreme Court has entered a judgment
of foreclosure and sale. However, because the March 2018
order granting plaintiff a default judgment is final,
defendant's right to appeal from the March 2018 order did
not terminate upon entry of the judgment of sale and
foreclosure (see Ditech Fin. LLC v Levine, 176