| Wells Fargo Bank, N.A. v Chaplin |
| 2013 NY Slip Op 04596 [107 AD3d 881] |
| June 19, 2013 |
| Appellate Division, Second Department |
| Wells Fargo Bank, N.A., Respondent, v YvonneChaplin, Appellant, et al., Defendants. |
—[*1] Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Andrew Morganstern ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendant Yvonne Chaplin appeals from (1)an order of the Supreme Court, Queens County (Kerrigan, J.), entered February 14, 2011,which denied her motion for summary judgment dismissing the complaint insofar asasserted against her, and, in effect, for leave to enter a default judgment on hercounterclaims against the plaintiff upon the plaintiff's failure to timely reply to thecounterclaims, and, sua sponte, directed the dismissal of her counterclaims, and (2) anorder of the same court entered July 20, 2011, which granted the plaintiff's cross motionpursuant to CPLR 3217 (b) to voluntarily discontinue the action and denied her motionfor leave to renew and reargue her prior motion for summary judgment dismissing thecomplaint insofar as asserted against her, and, in effect, for leave to enter a defaultjudgment on her counterclaims against the plaintiff upon the plaintiff's failure to timelyreply to the counterclaims.
Ordered that the appeal from so much of the order entered February 14, 2011, as, suasponte, directed the dismissal of the counterclaims of the defendant Yvonne Chaplin isdeemed to be a motion for leave to appeal from that portion of the order, and leave toappeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order entered February 14, 2011, is affirmed; and it is further,
Ordered that the appeal from so much of the order entered July 20, 2011, as deniedthat branch of the defendant Yvonne Chaplin's motion which was for leave to reargue isdismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order dated July 20, 2011, is affirmed insofar as reviewed; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiff.[*2]
In January 2008, the plaintiff commenced thisaction to foreclose on a second mortgage secured by real property located in Rosedale,Queens. In February 2008, the defendant Yvonne Chaplin filed an answer withcounterclaims. Chaplin, however, did not produce an affidavit of service demonstratingservice of the answer with counterclaims upon the plaintiff. In December 2010, Chaplinmoved for summary judgment dismissing the complaint insofar as asserted against her,and, in effect, for leave to enter a default judgment on her counterclaims against theplaintiff upon the plaintiff's failure to timely reply to the counterclaims. In an orderentered February 14, 2011, the Supreme Court denied Chaplin's motion in its entirety,and, sua sponte, directed dismissal of her counterclaims. Chaplin thereafter moved forleave to renew and reargue. The plaintiff cross-moved pursuant to CPLR 3217 (b) tovoluntarily discontinue the action. In an order entered July 20, 2011, the Supreme Courtdenied Chaplin's motion, and granted the plaintiff's cross motion.
The Supreme Court properly determined that, in support of that branch of her motionwhich was for summary judgment dismissing the complaint insofar as asserted againsther, Chaplin failed to establish her prima facie entitlement to judgment as a matter of law(see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman vCity of New York, 49 NY2d 557 [1980]). Accordingly, the Supreme Court properlydenied that branch of Chaplin's motion regardless of the sufficiency of the plaintiff'sopposition papers.
When a defendant asserting counterclaims fails to seek leave to enter a defaultjudgment within one year after the default on the counterclaims has occurred, thecounterclaims are deemed abandoned pursuant to CPLR 3215 (c) (see Giglio v NTIMP, Inc., 86AD3d 301, 307 [2011]; Mint Factors v Goldman, 74 AD2d 599, 599[1980]). Here, the Supreme Court properly denied that branch of the defendant's motionwhich was for leave to enter a default judgment on her counterclaims against the plaintiffupon the plaintiff's alleged failure to timely reply to the counterclaims, and properly, suasponte, dismissed the defendant's counterclaims as abandoned (see CPLR 3215[c]; Giglio v NTIMP, Inc., 86 AD3d at 307; Mint Factors v Goldman, 74AD2d at 599-600). The defendant failed to move for leave to enter a default judgment onher counterclaims within one year, and failed to establish a reasonable excuse for herdelay in seeking a default judgment on the counterclaims and demonstrate that thecounterclaims were potentially meritorious (see Giglio v NTIMP, Inc., 86 AD3dat 308).
The Supreme Court also properly denied that branch of Chaplin's subsequent motionwhich was for leave to renew, as she failed to set forth new facts which would warrant achange the court's prior determinations (see CPLR 2221 [e]).
The determination of a motion for leave to voluntarily discontinue an action pursuantto CPLR 3217 (b) rests within the sound discretion of the court (see Expedite Video ConferencingServs., Inc. v Botello, 67 AD3d 961, 961 [2009]). " 'In the absence of specialcircumstances, such as prejudice to a substantial right of the defendant, or other improperconsequences, a motion for a voluntary discontinuance should be granted' " (Blackwell v Mikevin Mgt. III,LLC, 88 AD3d 836, 837 [2011], quoting Expedite Video ConferencingServs., Inc. v Botello, 67 AD3d at 961; see Tucker v Tucker, 55 NY2d 378,383 [1982]). Here, the defendant opposed the plaintiff's cross motion to discontinue thisaction because the plaintiff employed this procedure solely for the purpose of litigatingall claims against her in connection with all applicable mortgages in a separate, pendingaction. However, the Supreme Court providently exercised its discretion in granting theplaintiff's cross motion pursuant to CPLR 3217 (b) to voluntarily discontinue the action,as there was no showing that the defendant would be prejudiced by discontinuance(see Mathias v Daily News, 301 AD2d 503, 504 [2003]; see also Blackwell vMikevin Mgt. III, LLC, 88 AD3d at 837).
The defendant's remaining contentions are without merit. Skelos, J.P., Angiolillo,Dickerson and Roman, JJ., concur.