| US Bank N.A. v Dorestant |
| 2015 NY Slip Op 06428 [131 AD3d 467] |
| August 5, 2015 |
| Appellate Division, Second Department |
[*1]
| US Bank National Association, as Trustee for MASTRAsset-Backed Securities Trust, 2006-FRE2, Appellant, v Frantz Dorestant,Respondent, et al., Defendants. |
Frankel, Lambert, Weiss, Weisman & Gordon, LLP, Bay Shore, N.Y. (Joseph F.Battista of counsel), for appellant.
The Law Offices of Jaime Lathrop, P.C., Brooklyn, N.Y. (David Lavery of counsel),for respondent.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, fromso much of an order of the Supreme Court, Kings County (Edwards, J.), dated May 15,2014, as denied those branches of its motion which were for leave to enter a judgmentagainst the defendants upon their failure to appear or answer the complaint and for anorder of reference, and granted the cross motion of the defendant Frantz Dorestantpursuant to CPLR 3215 (c) to dismiss the complaint insofar as asserted against him asabandoned.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,those branches of the plaintiff's motion which were for leave to enter a judgment againstthe defendants upon their failure to appear or answer the complaint and for an order ofreference are granted, and the cross motion of the defendant Frantz Dorestant pursuant toCPLR 3215 (c) to dismiss the complaint insofar as asserted against him as abandoned isdenied.
The plaintiff US Bank National Association (hereinafter U.S. Bank) commenced thisaction in 2008. The defendants failed to appear or answer the complaint. In 2009, withinone year of the defendants' default, U.S. Bank moved, ex parte, for an order of reference.In 2010, before the motion was decided, U.S. Bank sought to withdraw the motion sothat it could comply with new rules promulgated by the Office of Court Administrationin connection with mortgage foreclosure actions. The motion was marked withdrawn in2011.
In January 2014, after attending foreclosure settlement conferences at which thedefendants failed to appear, the plaintiff moved for leave to enter a judgment against thedefendants upon their failure to appear or answer the complaint and for an order ofreference. The defendant Frantz Dorestant opposed U.S. Bank's motion, andcross-moved pursuant to CPLR 3215 (c) to dismiss the complaint insofar as assertedagainst him as abandoned. In the order appealed from, the Supreme Court denied U.S.Bank's motion, granted Dorestant's cross motion, and directed the dismissal of thecomplaint insofar as asserted against him. U.S. Bank appeals. We reverse the orderinsofar as appealed from.
CPLR 3215 provides that "[i]f the plaintiff fails to take proceedings for the entry of[*2]judgment within one year after [a] default, the courtshall not enter judgment but shall dismiss the complaint as abandoned, without costs,upon its own initiative or on motion, unless sufficient cause is shown why the complaintshould not be dismissed" (CPLR 3215 [c]). It is not necessary for a plaintiff to actuallyobtain a default judgment within one year of the default in order to avoid dismissalpursuant to CPLR 3215 (c) (seeWells Fargo Bank, N.A. v Combs, 128 AD3d 812 [2015]; Mortgage Elec. Registration Sys.,Inc. v Smith, 111 AD3d 804, 806 [2013]; Jones v Fuentes, 103 AD3d 853, 853 [2013]; Nowicki v Sports WorldPromotions, 48 AD3d 435, 436 [2008]). Nor is a plaintiff required tospecifically seek the entry of a judgment within a year. " '[A]s long as"proceedings" are being taken, and these proceedings manifest an intent not to abandonthe case but to seek a judgment, the case should not be subject to dismissal' "(Brown v Rosedale Nurseries, 259 AD2d 256, 257 [1999], quoting 7-3215Weinstein-Korn-Miller, NY Civ Prac CPLR ¶ 3215.14; see Wells Fargo Bank, N.A. vCombs, 128 AD3d 812 [2015]; Klein v St. Cyprian Props., Inc., 100 AD3d 711, 712[2012]; Pisciotta v LifestyleDesigns, Inc., 62 AD3d 850, 852 [2009]; Icon Equip. Distribs. v GordonEnvtl. & Mech. Corp., 272 AD2d 579, 579 [2000]; Home Sav. of Am., F.A.v Gkanios, 230 AD2d 770, 770-771 [1996]).
Here, in 2009, when U.S. Bank took the preliminary step toward obtaining a defaultjudgment of foreclosure and sale by moving, ex parte, for an order of reference, itinitiated proceedings for entry of the default judgment of foreclosure and sale within oneyear of the defendants' default and, thus, did not abandon the action (see CPLR3215 [c]; Wells Fargo Bank,N.A. v Combs, 128 AD3d 812 [2015]; Mortgage Elec. Registration Sys.,Inc. v Smith, 111 AD3d at 806; Jones v Fuentes, 103 AD3d at 853; Kleinv St. Cyprian Props., Inc., 100 AD3d at 712). Accordingly, the Supreme Court erredin granting Dorestant's cross motion pursuant to CPLR 3215 (c) to dismiss the complaintinsofar as asserted against him as abandoned.
The Supreme Court also erred in denying those branches of U.S. Bank's motionwhich were for leave to enter a judgment against the defendants upon their failure toappear or answer the complaint and for an order of reference. "An applicant for a defaultjudgment against a defendant must submit proof of service of the summons andcomplaint, proof of the facts constituting the claim, and proof of the defaultingdefendant's failure to answer or appear" (U.S. Bank, N.A. v Razon, 115 AD3d 739, 740 [2014];see CPLR 3215 [f]; Citimortgage, Inc. v Chow Ming Tung, 126 AD3d 841,843 [2015]). Here, in support of its motion, U.S. Bank satisfied these requirements(see U.S. Bank, N.A. v Razon, 115 AD3d at 740). Contrary to Dorestant'scontention, since the defendants in this action defaulted in appearing or answering thecomplaint and have failed to demonstrate grounds for vacating their default, they areprecluded from asserting the plaintiff's lack of standing as a defense. Accordingly, it wasunnecessary for U.S. Bank to demonstrate that it had standing to commence this action inorder to establish its entitlement to a default judgment (see Wells Fargo Bank, N.A. vCombs, 128 AD3d 812 [2015]; Deutsche Bank Natl. Trust Co. v Hussain, 78 AD3d 989,990 [2010]).
"To defeat a facially adequate CPLR 3215 motion, a defendant must show either thatthere was no default, or that it has a reasonable excuse for its delay and a potentiallymeritorious defense" (Fried vJacob Holding, Inc., 110 AD3d 56, 60 [2013]; see Wassertheil v Elburg, LLC,94 AD3d 753, 753 [2012]). Here, in opposition to U.S. Bank's motion, Dorestantfailed to allege, let alone demonstrate, that he did not default or that he had a reasonableexcuse for his default. Accordingly, the Supreme Court should have granted thosebranches of U.S. Bank's motion which were for leave to enter a judgment against thedefendants upon their failure to appear or answer the complaint, and for an order ofreference. Rivera, J.P., Dickerson, Miller and Duffy, JJ., concur.