| US Bank N.A. v Konstantinovic |
| 2017 NY Slip Op 01248 [147 AD3d 1002] |
| February 15, 2017 |
| Appellate Division, Second Department |
[*1]
| US Bank National Association, Respondent, v MarijaKonstantinovic, Appellant, et al., Defendants. |
Law Office of Nicholas M. Moccia, P.C., Staten Island, NY, for appellant.
Reed Smith LLP, New York, NY (Andrew B. Messite and Kerren B. Zinner of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Marija Konstantinovic appeals, as limitedby her brief, from so much of an order of the Supreme Court, Queens County (Nahman, J.),entered March 16, 2015, as granted those branches of the plaintiff's motion which were to amendthe caption to correct the name of the plaintiff, to vacate an order of reference of the same court(Cullen, J.) dated June 2, 2010, and for a new order of reference, and denied that branch of hercross motion which was to dismiss the complaint insofar as asserted against her as abandonedpursuant to CPLR 3215 (c) or, in the alternative, for leave to serve an answer.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action on April 13, 2009, to foreclose a mortgage and servedthe defendant Marija Konstantinovic (hereinafter the defendant) on or about May 1, 2009. Thedefendant did not serve an answer. In August 2009, the plaintiff moved for an order of reference,and the motion was unopposed. In a decision dated March 8, 2010, the Supreme Courtdetermined that the plaintiff was entitled to an order of reference and directed the plaintiff to"[s]ubmit order." An order of reference dated June 2, 2010, was filed with the Queens CountyClerk.
Over four years later, on July 29, 2014, the plaintiff moved, inter alia, to vacate the order ofreference, for a new order of reference, and to amend the caption, "nunc pro tunc, toreflect the Plaintiff['s] name as US Bank National Association, as Trustee for Adjustable RateMortgage Trust 2005-10, Adjustable Rate Mortgage Backed Pass Through Certificates, Series2005-10." The plaintiff's counsel affirmed that the name of the plaintiff in the caption reflected atruncated version of the plaintiff's full name, and therefore, the plaintiff sought to correct thecaption to reflect the plaintiff's full name. The defendant opposed the plaintiff's motion andcross-moved, inter alia, to dismiss the complaint insofar as asserted against her as abandonedpursuant to CPLR 3215 (c) or, in the alternative, for leave to serve an answer. The SupremeCourt granted the plaintiff's motion and denied the defendant's cross motion. We affirm insofaras appealed from.
The Supreme Court properly denied that branch of the defendant's cross motion which was todismiss the complaint insofar as asserted against her as abandoned pursuant to CPLR 3215 (c).CPLR 3215 (c) provides that "[i]f the plaintiff fails to take proceedings for the entry of [*2]judgment within one year after [a] default, the court shall not enterjudgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative oron motion, unless sufficient cause is shown why the complaint should not be dismissed." "It isnot necessary for a plaintiff to actually obtain a default judgment within one year of the default inorder to avoid dismissal pursuant to CPLR 3215 (c)" (US Bank N.A. v Dorestant, 131 AD3d 467, 469 [2015]; see Wells Fargo Bank, N.A. v Daskal,142 AD3d 1071, 1072 [2016]). "Rather, it is enough that the plaintiff timely takes 'thepreliminary step toward obtaining a default judgment of foreclosure and sale by moving for anorder of reference' to establish that it 'initiated proceedings for entry of a judgment within oneyear of the default' for the purposes of satisfying CPLR 3215 (c)" (HSBC Bank USA, N.A. v Traore, 139AD3d 1009, 1010 [2016], quoting Wells Fargo Bank, N.A. v Combs, 128 AD3d 812, 813 [2015]; see Klein v St. Cyprian Props., Inc.,100 AD3d 711, 712 [2012]). In August 2009, when the plaintiff took the preliminary steptoward obtaining a default judgment of foreclosure and sale by moving for an order of reference(see RPAPL 1321 [1]), it initiated proceedings for entry of a default judgment within oneyear of the defendant's default and, thus, did not abandon this action (see CPLR 3215 [c];HSBC Bank USA, N.A. v Traore, 139 AD3d at 1011; US Bank N.A. v Dorestant,131 AD3d at 469; Wells Fargo Bank, N.A. v Combs, 128 AD3d at 813).
Contrary to the defendant's contention, the Supreme Court providently exercised itsdiscretion by permitting the correction of the name of the plaintiff in the caption since thecorrection did not affect a substantial right of the defendant (see CPLR 2001; HSBC Bank USA, N.A. v Dalessio,137 AD3d 860, 862 [2016]). Moreover, the defendant waived her objection to the plaintiff'sstanding by failing to raise the objection in an answer or in a pre-answer motion to dismiss thecomplaint (see CPLR 3018 [b]; 3211 [a], [e]; Nationstar Mtge., LLC v Avella, 142 AD3d 594, 595 [2016]; Bank of N.Y. Trust Co., N.A. vChiejina, 142 AD3d 570 [2016]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239[2007]). Contrary to the defendant's further contention, the plaintiff's motion was not madepursuant to CPLR 3025 (b), and therefore, the corrections to the caption made pursuant to CPLR2001 did not provide her an opportunity to serve an answer to an amended complaint (cf.CPLR 3025 [d]).
The Supreme Court properly granted those branches of the plaintiff's motion which were tovacate the order of reference dated June 2, 2010, and for a new order of reference. The plaintiff'scounsel affirmed that a complete signed copy of the order of reference could not be located. Inthis regard, the copy of the order of reference that was filed with the Queens County Clerk didnot contain a signature page or a provision appointing a referee. The plaintiff demonstrated itsentitlement to vacate the order of reference by establishing that the order of reference filed withthe Queens County Clerk was incomplete and that it was unable to confirm, inter alia, that aproper review of the records had been undertaken by its previous counsel when previous counselmade the motion for the order of reference, as required by Administrative Orders AO/548/10 andAO/431/11 of the Chief Administrative Judge of the Courts (see U.S. Bank N.A. v Ahmed, 137 AD3d 1106, 1108 [2016]).Moreover, the plaintiff submitted documentary proof showing that the defendant failed to answerthe complaint, that an investigation of the relevant records established that the plaintiff was theholder of the note and mortgage and that the defendant had defaulted thereon, and that theappointment of a referee to compute the amount owed in a new order of reference would beproper (see id. at 1108). Chambers, J.P., Austin, Hinds-Radix and Barros, JJ.,concur.