| Klein v St. Cyprian Props., Inc. |
| 2012 NY Slip Op 07637 [100 AD3d 711] |
| November 14, 2012 |
| Appellate Division, Second Department |
| John Klein, Appellant, v St. Cyprian Properties, Inc.,Respondent, et al., Defendants. |
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In an action to foreclose a mortgage, the plaintiff appeals from an order of the SupremeCourt, Kings County (Velasquez, J.), dated July 11, 2011, which denied his motion for a defaultjudgment of foreclosure and sale and, in effect, granted that branch of the cross motion of thedefendant St. Cyprian Properties, Inc., which was pursuant to CPLR 3215 (c) to dismiss thecomplaint insofar as asserted against it as abandoned.
Ordered that the order is reversed, on the law, with costs, that branch of the cross motion ofthe defendant St. Cyprian Properties, Inc., which was pursuant to CPLR 3215 (c) to dismiss thecomplaint insofar as asserted against it as abandoned is denied, and the matter is remitted to theSupreme Court, Kings County, for a determination on the merits of the plaintiff's motion for adefault judgment of foreclosure and sale and of that branch of the cross motion of the defendantSt. Cyprian Properties, Inc., which was to extend its time to answer the complaint.
On July 15, 2008, the plaintiff commenced this action against several defendants, includingthe defendant St. Cyprian Properties, Inc. (hereinafter the defendant). The defendant failed toanswer, appear, or move with respect to the complaint, and in September 2008, the plaintiffmoved for an order of reference pursuant to Real Property Actions and Proceedings Law §1321 (1). The Supreme Court granted the motion and signed the order of reference on February23, 2010, nearly 18 months later. The Referee issued a report dated June 14, 2010. In July 2010,the plaintiff moved for a default judgment of foreclosure and sale. In response, the defendantcross-moved pursuant to CPLR 3215 (c) to dismiss the complaint insofar as asserted against it asabandoned, or alternatively, to extend its time to answer the complaint. The Supreme Courtdenied the plaintiff's motion for a default judgment of foreclosure and sale on the ground that hefailed to comply with CPLR 3215 (c) and, in effect, granted that branch of the defendant's crossmotion which was pursuant to CPLR 3215 (c) to dismiss the complaint insofar as assertedagainst it as abandoned.
In September 2008, when the plaintiff took the preliminary step toward obtaining a defaultjudgment of foreclosure and sale by moving for an order of reference (see RPAPL 1321[1]), he initiated proceedings for entry of the default judgment of foreclosure and sale within oneyear of the defendant's default and, thus, did not abandon the action (see CPLR 3215 [c];Pisciotta v Lifestyle Designs, Inc.,62 AD3d 850, 852 [2009]; Icon Equip. Distribs. v Gordon Envtl. & Mech. Corp.,272 AD2d 579 [2000]; Home Sav. of Am., F.A. v Gkanios, 230 AD2d 770 [1996]).[*2]
Since the Supreme Court did not consider the merits ofthe plaintiff's motion or that branch of the defendant's cross motion which was to extend its timeto answer the complaint, the matter must be remitted to the Supreme Court, Kings County, for adetermination on the merits of the motion and that branch of the cross motion (see Allstate Ins. Co. v Nalbandian, 89AD3d 648, 649 [2011]). Dillon, J.P., Austin, Sgroi and Cohen, JJ., concur.