| Wells Fargo Bank, N.A. v Combs |
| 2015 NY Slip Op 04122 [128 AD3d 812] |
| May 13, 2015 |
| Appellate Division, Second Department |
[*1]
| Wells Fargo Bank, N.A., Respondent, v LoisCombs et al., Appellants, et al., Defendants. |
Brian McCaffrey, Jamaica, N.Y., for appellants.
Hogan Lovells US LLP, New York, N.Y. (David Dunn, Chava Brandriss, LeahRabinowitz Lenz, and Richard A. Sillett of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Lois Combs and Marc Combsappeal, as limited by their brief, from so much of an order of the Supreme Court, QueensCounty (Hart, J.), entered April 2, 2014, as denied that branch of their motion which wasto dismiss the complaint insofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
In 2007, the plaintiff commenced this action to foreclose a mortgage on a residentialproperty located in Queens. The defendants Lois Combs and Marc Combs (hereinaftertogether the Combs defendants) failed to timely file an answer or otherwise respond tothe complaint, and they did not move to extend the time to appear or answer (seeCPLR 3012 [a], [d]). After more than six years without an appearance in the action,the Combs defendants moved, inter alia, pursuant to CPLR 3215 (c) to dismiss thecomplaint insofar as asserted against them on the ground that the plaintiff "fail[ed] totake proceedings for the entry of judgment within one year" (CPLR 3215 [c]) after theCombs defendants' default in appearing or answering. At the same time, the Combsdefendants challenged the plaintiff's standing to commence this foreclosure action. TheSupreme Court rejected the Combs defendants' arguments and denied their motion.
Within a few months after the Combs defendants' default in appearing or answering,the plaintiff took the preliminary step toward obtaining a default judgment of foreclosureand sale by moving for an order of reference. Thus, the plaintiff initiated proceedings forentry of a judgment within one year of the default, and there was no basis for thedismissal of the complaint pursuant to CPLR 3215 (c) (see Klein v St. Cyprian Props.,Inc., 100 AD3d 711, 712 [2012]; Home Sav. of Am., F.A. v Gkanios,230 AD2d 770, 771 [1996]; seealso U.S. Bank N.A. v Poku, 118 AD3d 980, 981 [2014]; Mortgage Elec. Registration Sys.,Inc. v Smith, 111 AD3d 804, 806 [2013]).
Additionally, the Combs defendants waived their argument that the plaintiff lackedstanding to commence the foreclosure action because they never appeared or answered(see JP Morgan Mtge.Acquisition Corp. v Hayles, 113 AD3d 821, 822 [2014]; Deutsche Bank Natl. Trust Co. v[*2]Hussain, 78 AD3d 989, 990 [2010]; Deutsche Bank Natl. Trust Co. vYoung, 66 AD3d 819 [2009]). Mastro, J.P., Leventhal, Maltese and Duffy, JJ.,concur.