| Aurora Loan Servs., LLC v Hiyo |
| 2015 NY Slip Op 06100 [130 AD3d 763] |
| July 15, 2015 |
| Appellate Division, Second Department |
[*1]
| Aurora Loan Services, LLC,Appellant, v Milagros Hiyo, Respondent, et al.,Defendants. |
Davidson Fink LLP, Rochester, N.Y. (Larry T. Powell of counsel), forappellant.
Young Law Group, PLLC, Bohemia, N.Y. (Ivan E. Young of counsel), forrespondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Suffolk County (Quinn, J.), entered July 1, 2014, which granted thatbranch of the motion of the defendant Milagros Hiyo which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against her, and granted that branch of hermotion which was for an award of an attorney's fee to the extent of directing the plaintiffto pay an attorney's fee in the sum of $2,500.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting that branch of the motion of the defendant Milagros Hiyo which was for awardof an attorney's fee to the extent of directing the plaintiff to pay an attorney's fee in thesum of $2,500, and substituting therefor a provision denying that branch of the motion;as so modified, the order is affirmed, without costs or disbursements.
In July 2011, the plaintiff commenced this action to foreclose a mortgage. Itallegedly served the defendant Milagros Hiyo with the summons and complaint on July11, 2011, by personal delivery (see CPLR 308 [1]), but Hiyo did not appear in theaction within the 20 days provided by statute (see CPLR 320 [a]). Two yearslater, in August 2013, Hiyo moved to dismiss the complaint pursuant to CPLR 3215 (c),on the ground that the plaintiff had abandoned the action. Hiyo also sought an attorney'sfee. The Supreme Court granted that branch of the motion which was to dismiss thecomplaint insofar as asserted against Hiyo to CPLR 3215 (c) and granted that branch ofthe motion which was for an award of an attorney's fee to the extent of directing theplaintiff to pay an attorney's fee in the sum of $2,500. The plaintiff appeals.
CPLR 3215 (c), which is entitled "Default not entered within one year," states, asrelevant to this appeal: "[i]f the plaintiff fails to take proceedings for the entry ofjudgment within one year after the default, the court shall not enter judgment but shalldismiss 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." The policyunderlying the statute is "to prevent parties who have asserted claims from unreasonablydelaying the termination of actions, and to avoid inquests [*2]on stale claims" (Giglio v NTIMP, Inc., 86 AD3d 301, 307 [2011]). Upon ashowing of the requisite one year of delay, dismissal is mandatory in the first instance(id. at 307-308). Failure to take proceedings for entry of judgment may beexcused, however, upon a showing of sufficient cause. To establish "sufficient cause,"the party opposing dismissal must demonstrate that it had a reasonable excuse for thedelay in taking proceedings for entry of a default judgment and that it has a potentiallymeritorious action (see LNVCorp. v Forbes, 122 AD3d 805, 806 [2014]; Pipinias v J. Sackaris & Sons, Inc., 116 AD3d 749,751 [2014]; Giglio v NTIMP, Inc., 86 AD3d at 308). Here, the Supreme Courtcorrectly granted that branch of Hiyo's motion which was pursuant to CPLR 3215 (c) todismiss the complaint insofar as asserted against her. Hiyo demonstrated that the plaintiffhad failed to take any proceedings for entry of judgment within one year after shedefaulted, and the plaintiff failed to demonstrate sufficient cause why that branch of themotion should be denied.
The Supreme Court erred, however, in granting that branch of Hiyo's motion whichwas for an award of an attorney's fee. Hiyo made no showing that she was entitled to anattorney's fee in this action. Dillon, J.P., Balkin, Miller and Maltese, JJ., concur.