| Wells Fargo Bank, N.A. v Adickes |
| 2016 NY Slip Op 01540 [137 AD3d 1365] |
| March 3, 2016 |
| Appellate Division, Third Department |
[*1]
| Wells Fargo Bank, N.A., Respondent, v RichardAdickes, Also Known as Richard J. Adickes, et al., Appellants, et al.,Defendants. |
Russell A. Schindler, Kingston, for appellants.
Reed Smith, LLP, New York City (Joseph B. Teig of counsel), for respondent.
Clark, J. Appeal from an order of the Supreme Court (Work, J.), entered May 1, 2015in Ulster County, which granted plaintiff's motion for an order of reference.
In November 2008, defendants Richard Adickes and Debra Adickes (hereinaftercollectively referred to as defendants) executed a note that was secured by a mortgage onreal property located in Ulster County. The note was subsequently assigned to plaintiff,and the assignment was filed with the Ulster County Clerk in February 2012. In August2013, plaintiff commenced the instant mortgage foreclosure action against, amongothers, defendants. Three court conferences were held and, at each conference, SupremeCourt stayed the action for a period of time with the final stay expiring on October 31,2014. In March 2015, following defendants' default in answering the complaint, plaintiffmoved for an order of reference. In opposition to plaintiff's motion, defendants arguedthat Supreme Court should dismiss the complaint as abandoned pursuant to CPLR 3215(c). Supreme Court rejected defendants' claim and granted plaintiff's motion for an orderof reference. Defendants now appeal.
Initially, as before us, defendants do not reiterate the argument raised in opposition toplaintiff's motion before Supreme Court.[FN*] Instead, for the first time on appeal,defendants [*2]improperly advance a new argument(see Rentways, Inc. v O'Neill Milk & Cream Co., 308 NY 342, 349 [1955]),an argument we therefore decline to consider (see Albany Eng'g Corp. v Hudson River/Black Riv. RegulatingDist., 110 AD3d 1220, 1222 [2013]). In any event, were we to address themerits, we would nonetheless find that the court-ordered stays constitute sufficient causefor plaintiff's failure to seek a default judgment within one year of defendants' failure toanswer or otherwise appear in this action (see CPLR 3215 [c]; 22 NYCRR202.12-a [c] [7]; PHH Mtge.Corp. v Davis, 111 AD3d 1110, 1113 [2013], lv dismissed 23 NY3d 940[2014]).
McCarthy, J.P., Egan Jr. and Lynch, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *:As such, this argument isdeemed abandoned (see ScienceApplications Intl. Corp. v Environmental Risk Solutions, LLC, 132 AD3d 1161,1163 n 1 [2015]).