| Aurora Loan Servs., LLC v Gross |
| 2016 NY Slip Op 03691 [139 AD3d 772] |
| May 11, 2016 |
| Appellate Division, Second Department |
[*1]
| Aurora Loan Services, LLC, Appellant, v SyeGross et al., Respondents, et al., Defendants. |
Sandelands Eyet, LLP, New York, NY (Laurence P. Chirch and Kieran M. Dowlingof counsel), for appellant.
Eran Regev, Great Neck, NY, for respondents.
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 (Knipel, J.), dated March 5,2015, as denied its motion to vacate an order of the same court dated February 27, 2014,sua sponte directing the dismissal of the complaint pursuant to CPLR 3215 (c), and torestore the action to the trial calendar.
Ordered that the order dated March 5, 2015, is reversed insofar as appealed from, onthe facts and in the exercise of discretion, with costs, the plaintiff's motion to vacate theorder dated February 27, 2014, and to restore the action to the trial calendar is granted,and the matter is remitted to the Supreme Court, Kings County, for a determination of thecross motion of the defendants Sye Gross and Goldie Gross for leave to serve and file alate answer.
The instant mortgage foreclosure action was commenced in January 2008. In thecomplaint, the plaintiff alleged that a default in payment occurred beginning with thepayment due on October 1, 2007. According to the affidavits of service, the defendantsSye Gross and Goldie Gross (hereinafter together the defendants) were served withprocess pursuant to CPLR 308 (4) on February 11, 2008. They did not appear or answerthe complaint. On June 24, 2008, the plaintiff filed a request for judicial interventionseeking an ex parte order of reference. The plaintiff moved for an order of reference inOctober 2009, and the motion was withdrawn on November 18, 2009.
A settlement conference was scheduled for September 20, 2010, and the defendantsdid not appear. On October 20, 2010, Administrative Order AO/548/10 of the ChiefAdministrative Judge of the State of New York was issued, requiring a plaintiff'sattorney in certain mortgage foreclosure actions to submit an affirmation confirming theaccuracy of the allegations in the complaint. On March 2, 2011, Administrative OrderAO/548/10 was replaced by Administrative Order AO/431/11, which revised the formfor the required attorney affirmation. The plaintiff asserts that its former attorneyattempted to comply with those Administrative Orders, but was "unsuccessful." After astatus conference on February 27, 2014, the Supreme Court issued an order of that date,which sua sponte directed the dismissal of the complaint pursuant to CPLR 3215 (c), forthe [*2]plaintiff's failure to move for leave to enter adefault judgment within one year after the defendants' default.
In May 2014, the plaintiff changed attorneys, and thereafter moved to vacate theorder dated February 27, 2014, and to restore the action to the trial calendar. In anattorney affirmation submitted in support of the motion, counsel for the plaintiff notedthat the plaintiff filed a request for judicial intervention seeking an ex parte order ofreference within one year after the defendants' default. The plaintiff's counsel furtherasserted that the delay in filing the motion arose from attempts to comply withAdministrative Orders AO/548/2010 and AO/431/2011, and also CPLR 3408, whichmandates settlement conferences in certain mortgage foreclosure actions. The defendantsopposed the motion and, in the alternative, cross-moved for leave to serve and file a lateanswer, contending that the plaintiff's motion for an order of reference was not filed untilOctober 2009, and was subsequently withdrawn. In the order appealed from, theSupreme Court denied the plaintiff's motion and, in effect, denied the defendants' crossmotion as academic.
CPLR 3215 (c) states, in pertinent part: "If the plaintiff fails to take proceedings forthe entry of judgment within one year after the default, the court shall not enter judgmentbut shall dismiss the complaint as abandoned, without costs, upon its own initiative or onmotion, unless sufficient cause is shown why the complaint should not be dismissed." Toavoid dismissal pursuant to CPLR 3215 (c), "[i]t is not necessary for a plaintiff toactually obtain a default judgment within one year of the default" (US Bank N.A. v Dorestant,131 AD3d 467, 469 [2015]). Rather, "[a]s long as 'proceedings' are being taken, andthese proceedings manifest an intent not to abandon the case but to seek a judgment, thecase should not be subject to dismissal" (Brown v Rosedale Nurseries, 259 AD2d256, 257 [1999] [internal quotation marks omitted]), even if the plaintiff's motion is laterwithdrawn (see HSBC BankUSA, N.A. v Alexander, 124 AD3d 838, 839 [2015]).
Here, the plaintiff initiated proceedings in June 2008 for the entry of a judgment offoreclosure and sale within one year of the defendants' default by filing the request forjudicial intervention seeking an ex parte order of reference. There was no evidence thatthe plaintiff intended to abandon the action (cf. Skeete v Bell, 292 AD2d 371[2002]). Rather, it appears that the plaintiff was attempting to comply with newlyimposed requirements for certain mortgage foreclosure actions, which were revised whilethe action was pending. Under these circumstances, the Supreme Court improvidentlyexercised its discretion in sua sponte directing the dismissal of the complaint pursuant toCPLR 3215 (c), as no extraordinary circumstances existed to warrant dismissal (see Citimortgage, Inc. vEspinal, 136 AD3d 857 [2016]).
The defendants' remaining contentions are without merit (see Zuccarini vZiff-Davis Media, 306 AD2d 404 [2003]; Siegel v Obes, 112 AD2d 930[1985]).
Since, in the order appealed from, the defendants' cross motion for leave to serve andfile a late answer was, in effect, denied as academic in light of the denial of the plaintiff'smotion, we remit the matter to the Supreme Court, Kings County, for a determination ofthe defendants' cross motion on the merits. Mastro, J.P., Dillon, Hinds-Radix andMaltese, JJ., concur.