| HSBC Bank USA, N.A. v Traore |
| 2016 NY Slip Op 04022 [139 AD3d 1009] |
| May 25, 2016 |
| Appellate Division, Second Department |
[*1]
| HSBC Bank USA, National Association, as Trustee forNomura Asset-Backed Certificate Series, 2006-AF1, Appellant, v Abou Traore,Respondent, et al., Defendants. |
Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, NY (Joseph F.Battista of counsel), for appellant.
Alice A. Nicholson, Brooklyn, NY, for respondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Kings County (Kurtz, J.), dated September 2, 2014, which denied itsmotion for leave to enter a default judgment against the defendants upon their failure toappear or answer the complaint and for an order of reference, and granted the crossmotion of the defendant Abou Traore pursuant to CPLR 3215 (c) to dismiss thecomplaint insofar as asserted against him as abandoned.
Ordered that the order is reversed, on the law, with costs, the plaintiff's motion forleave to enter a default judgment against the defendants upon their failure to appear oranswer the complaint and for an order of reference is granted, and the cross motion of thedefendant Abou Traore pursuant to CPLR 3215 (c) to dismiss the complaint insofar asasserted against him as abandoned is denied.
The plaintiff commenced this action in July 2008. Abou Traore (hereinafter thedefendant) did not appear or answer the complaint. Although one of the other defendantsserved a notice of appearance, none of the defendants otherwise appeared or answeredthe complaint within the time permitted. In December 2008, the plaintiff moved, exparte, for an order of reference. In 2010, the plaintiff withdrew the motion before it wasdecided. The matter was thereafter referred to the foreclosure settlement part wheresettlement conferences were held, the last of which was held on September 27,2012.
In December 2013, the plaintiff moved for leave to enter a default judgment and foran order of reference. The defendant opposed the motion, and cross-moved pursuant toCPLR 3215 (c) to dismiss the complaint insofar as asserted against him as abandoned.The Supreme Court denied the plaintiff's motion and granted the defendant's crossmotion. The plaintiff appeals.
CPLR 3215 (c) provides that "[i]f the plaintiff fails to take proceedings for the entryof judgment within one year after [a] 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 [*2]is shown why the complaintshould not be dismissed." However, "[i]t is not necessary for a plaintiff to actually obtaina default judgment within one year of the default in order to avoid dismissal pursuant toCPLR 3215 (c)" (US Bank N.A.v Dorestant, 131 AD3d 467, 469 [2015]; see Aurora Loan Servs., LLC vGross, 139 AD3d 772 [2d Dept 2016]; WellsFargo Bank, N.A. v Combs, 128 AD3d 812, 813 [2015]). Rather, it is enoughthat the plaintiff timely takes "the preliminary step toward obtaining a default judgmentof foreclosure and sale by moving for an order of reference" to establish that it "initiatedproceedings for entry of a judgment within one year of the default" for the purposes ofsatisfying CPLR 3215 (c) (Wells Fargo Bank, N.A. v Combs, 128 AD3d at 813;see Klein v St. Cyprian Props.,Inc., 100 AD3d 711, 712 [2012]; Brown v Rosedale Nurseries, 259AD2d 256, 257 [1999]). "[A]s long as proceedings are being taken, and theseproceedings manifest an intent not to abandon the case but to seek a judgment, the caseshould not be subject to dismissal" (Brown v Rosedale Nurseries, 259 AD2d at257 [internal quotation marks omitted]; see US Bank N.A. v Dorestant, 131AD3d at 469; Wells Fargo Bank, N.A. v Combs, 128 AD3d at 813; Klein vSt. Cyprian Props., Inc., 100 AD3d at 712). This is so even where, as here, the timelymotion for an order of reference was subsequently withdrawn (see US Bank N.A. vDorestant, 131 AD3d at 468; HSBC Bank USA, N.A. v Alexander, 124 AD3d 838, 839[2015]).
In December 2008, when the plaintiff took the preliminary step toward obtaining adefault judgment of foreclosure and sale by moving for an order of reference (seeRPAPL 1321 [1]), it initiated proceedings for entry of the default judgment withinone year of the defendants' default and, thus, did not abandon this action (seeCPLR 3215 [c]; US Bank N.A. v Dorestant, 131 AD3d at 469; WellsFargo Bank, N.A. v Combs, 128 AD3d at 813; HSBC Bank USA, N.A. vAlexander, 124 AD3d at 839). Accordingly, the Supreme Court erred in applyingCPLR 3215 (c) and granting the defendant's cross motion to dismiss the action insofar asasserted against him on that basis.
The Supreme Court also erred in denying the plaintiff's motion. The plaintiffdemonstrated its entitlement to an order of reference and a default judgment bysubmitting proof of service of a copy of the summons and complaint, proof of the factsconstituting the claim, and proof that, although one of the defendants had served a noticeof appearance, none of the defendants, including the defendant, had otherwise appearedor answered within the time allowed (see CPLR 3215 [f]; U.S. Bank N.A. v Gulley, 137AD3d 1008 [2016]; Deutsche Bank Natl. Trust Co. v Kuldip, 136 AD3d 969[2016]; U.S. Bank N.A. vWolnerman, 135 AD3d 850, 850-851 [2016]). "To defeat a facially adequateCPLR 3215 motion, a defendant must show either that there was no default, or that it hasa reasonable excuse for its delay and a potentially meritorious defense" (US BankN.A. v Dorestant, 131 AD3d at 470 [internal quotation marks omitted]; see U.S.Bank N.A. v Wolnerman, 135 AD3d at 851; Fried v Jacob Holding, Inc., 110 AD3d 56, 60 [2013]).Here, in opposition to the plaintiff's motion, the defendant failed to demonstrate that hedid not default or that he had a reasonable excuse for his default (see US Bank N.A. vDorestant, 131 AD3d at 470). Accordingly, the Supreme Court should have grantedthe plaintiff's motion for leave to enter a default judgment against the defendants upontheir failure to appear or answer the complaint and for an order of reference. Dillon, J.P.,Chambers, Barros and Brathwaite Nelson, JJ., concur.