| U.S. Bank, N.A. v Dorvelus |
| 2016 NY Slip Op 04402 [140 AD3d 850] |
| June 8, 2016 |
| Appellate Division, Second Department |
[*1]
| U.S. Bank, National Association,Appellant, v Jeanine Dorvelus et al., Defendants. |
Woods Oviatt Gilman LLP, Rochester, NY (Katerina M. Kramarchyk and Yimell M.Suarez Abreu of counsel), for appellant.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Westchester County (Scheinkman, J.), dated June 15, 2015, whichdenied its motion pursuant to CPLR 5015 (a) (1) to vacate an order of the same courtdated March 1, 2013, sua sponte directing the dismissal of the complaint as abandonedpursuant to CPLR 3215 (c).
Ordered that the order dated June 15, 2015, is affirmed, without costs ordisbursements.
On February 23, 2005, Mortgage Lenders Network USA, Inc., loaned the sum of$254,750 to the defendants Jeanine Dorvelus and Aline Dorvelus (hereinafter togetherthe defendants). The loan was evidenced by a 30-year, fixed-rate note executed by thedefendants, and the note was secured by a mortgage also signed by the defendants whichencumbered certain real property located in New Rochelle. In September 2011, afterobtaining the note and mortgage, the plaintiff commenced this action to foreclose themortgage, alleging that the defendants had defaulted in their payment obligations as ofJanuary 1, 2007. In October 2011, the defendants were served with the summons andcomplaint and related documents. They failed to answer, appear, or otherwise move withrespect to the complaint. The plaintiff filed a request for judicial intervention andappeared by counsel for a conference in the Foreclosure Settlement Conference Part(hereinafter the FSCP) on December 9, 2011. The defendants failed to appear, and theconference was adjourned to January 26, 2012. At the conclusion of the conference onJanuary 26, 2012, at which the plaintiff appeared by new counsel and the defendantsagain failed to appear, the action was released from the FSCP and adjourned toDecember 12, 2012. On that date, the plaintiff had not taken any proceedings for theentry of a default judgment, and the Court Attorney Referee adjourned the action toFebruary 28, 2013, and warned the plaintiff's counsel that the complaint could bedismissed as abandoned on the adjourned date if the plaintiff did not demonstratesufficient cause not to dismiss it. On February 28, 2013, the plaintiff still had not takenany proceedings for the entry of a default judgment. In an order dated March 1, 2013, theSupreme Court, sua sponte, directed the dismissal of the complaint as abandonedpursuant to CPLR 3215 (c). In March 2015, two months after retaining new counsel, andtwo years after the court directed the dismissal of the complaint, the plaintiff movedpursuant to CPLR 5015 (a) (1) to vacate the order dated March 1, 2013. The court [*2]denied the motion.
The Supreme Court providently exercised its discretion in denying the plaintiff'smotion to vacate the order dated March 1, 2013. Although the defendants defaulted inNovember 2011, any motions in the action were held in abeyance while settlementconferences were pending in the FSCP (see 22 NYCRR 202.12-a [c] [7]).However, even after the action was released from the FSCP on January 26, 2012, theplaintiff failed to take proceedings for a default judgment, resulting in the dismissal ofthe complaint as abandoned over one year later. Therefore, in seeking to vacate the orderdated March 1, 2013, which directed the dismissal of the complaint as abandonedpursuant to CPLR 3215 (c), the plaintiff was required to demonstrate a reasonable excusefor its delay in seeking a default judgment and a potentially meritorious cause of action(see CPLR 5015 [a] [1]; Thomas v Avalon Gardens Rehabilitation & Health CareCtr., 107 AD3d 694 [2013]). The determination of whether an excuse isreasonable is committed to the sound discretion of the motion court (see Baruch v Nassau County,134 AD3d 658, 659 [2015];Pipinias v J. Sackaris & Sons, Inc., 116 AD3d 749, 752 [2014]). Here, theplaintiff's assertions that it did not take any proceedings for entry of judgment within oneyear after the defendants' default due to law office failure occasioned by the dissolutionof the law firm originally representing it, combined with delays caused by HurricaneSandy in 2012, were conclusory and unsubstantiated, and did not rise to the level of areasonable excuse (see Bank ofN.Y. Mellon v Colucci, 138 AD3d 1047, 1047-1048 [2016]; Buchakian v Kuriga, 138AD3d 711, 712-713 [2016]; Baruch v Nassau County, 134 AD3d at 659; Ryant v Bullock, 77 AD3d811, 812 [2010]). Since the plaintiff failed to proffer a reasonable excuse, this Courtneed not consider whether it had a potentially meritorious cause of action (see Bhatti v Empire Realty Assoc.,Inc., 101 AD3d 1066, 1067-1068 [2012]). Dillon, J.P., Balkin, Hinds-Radix andConnolly, JJ., concur.