| HSBC Bank USA, N.A. v Seidner |
| 2018 NY Slip Op 02202 [159 AD3d 1035] |
| March 28, 2018 |
| Appellate Division, Second Department |
[*1]
| HSBC Bank USA, National Association,Respondent, v Matthew Seidner, Also Known as Matthew S. Seidner, Appellant, et al.,Defendants. |
Law Offices of Seidner & Associates, P.C., Garden City, NY (Matthew Seidner pro seof counsel), for appellant.
Hogan Lovells US LLP, New York, NY (Cameron E. Grant, David Dunn, and ChavaBrandriss of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Matthew Seidner appeals, as limited byhis brief, from so much of an order of the Supreme Court, Nassau County (Thomas A. Adams,J.), entered April 14, 2015, as granted the plaintiff's motion for an order of reference and deniedthat branch of his cross motion which was pursuant to CPLR 3215 (c) to dismiss the complaintinsofar as asserted against him as abandoned.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, theplaintiff's motion for an order of reference is denied, and that branch of the cross motion of thedefendant Matthew Seidner which was pursuant to CPLR 3215 (c) to dismiss the complaintinsofar as asserted against him as abandoned is granted.
The plaintiff commenced this mortgage foreclosure action on November 9, 2011. Thedefendant Matthew Seidner was served with process on November 14, 2011, but did not answeror otherwise respond to the complaint.
On April 15, 2014, the plaintiff filed a request for judicial intervention and moved for anorder of reference. Seidner cross-moved, inter alia, pursuant to CPLR 3215 (c) to dismiss thecomplaint insofar as asserted against him as abandoned. The Supreme Court, among other things,granted the plaintiff's motion and denied that branch of the cross motion which was pursuant toCPLR 3215 (c), concluding that the matter had been on the calendar of the settlement conferencepart until August 2014, and that "[t]ime on the calendar of the conference part should beconsidered 'sufficient cause' within the meaning of CPLR 3215 (c)" as to why the complaintshould not be dismissed. Seidner appeals.
Pursuant to CPLR 3215 (c), "[i]f the plaintiff fails to take proceedings for the entry ofjudgment within one year after [a defendant's] default, the court shall not enter judgment butshall dismiss the complaint as abandoned . . . unless sufficient cause is shown whythe complaint should [*2]not be dismissed." "Sufficient cause"requires a showing of a reasonable excuse for the delay in timely moving for leave to enter adefault judgment, plus a demonstration that the cause of action is potentially meritorious (see NYCTL 2009-A Trust v Kings Hwy.Realty Co., 147 AD3d 866, 867 [2017]; Maspeth Fed. Sav. & Loan Assn. v Brooklyn Heritage, LLC, 138AD3d 793 [2016]; Aurora LoanServs., LLC v Hiyo, 130 AD3d 763 [2015]). "The determination of whether an excuse isreasonable in any given instance is committed to the sound discretion of the motion court" (Giglio v NTIMP, Inc., 86 AD3d301, 308 [2011]; see NYCTL 2009-A Trust v Kings Hwy. Realty Co., 147 AD3d at867). However, "reversal is warranted if that discretion is improvidently exercised" (NYCTL2009-A Trust v Kings Hwy. Realty Co., 147 AD3d at 868 [internal quotation marksomitted]; see Whiteside v Manfredi,132 AD3d 851, 852 [2015]).
Here, Seidner was in default as of the beginning of December 2011, 20 days after havingbeen served with process (see CPLR 3012 [a]), yet the plaintiff took no steps to initiateproceedings for the entry of a default judgment until April 15, 2014. The plaintiff failed to offerany excuse for its delay of more than two years in seeking a default judgment, other thanconclusory and unsubstantiated claims that "a significant portion" of the delay was caused by"Hurricane Sandy." This was insufficient to establish a reasonable excuse (see U.S. Bank, N.A. v Dorvelus, 140AD3d 850, 852 [2016]).
Moreover, the Supreme Court's finding that the matter had been on the calendar of thesettlement conference part until August 2014 was of no relevance under the particularcircumstances presented. In the usual case, if a request for judicial intervention in a mattersubject to mandatory settlement conferences is filed within the one-year deadline imposed byCPLR 3215 (c), the time thereafter to move for a default judgment is tolled while settlementconferences are pending (see 22 NYCRR 202.12-a [c] [7]; U.S. Bank, N.A. vDorvelus, 140 AD3d at 852). Here, however, it is undisputed that this action was not subjectto mandatory settlement conferences (see 22 NYCRR 202.12-a [a]) and, in any event, thematter was not transferred to the settlement conference part until well after the deadline of CPLR3215 (c) had passed.
The parties' remaining contentions either are without merit, are improperly raised for the firsttime on appeal, or have been rendered academic in light of our determination.
Accordingly, the Supreme Court should have granted that branch of Seidner's cross motionwhich was pursuant to CPLR 3215 (c) to dismiss the complaint insofar as asserted against him asabandoned, and should have denied the plaintiff's motion for an order of reference. Balkin, J.P.,Leventhal, Chambers and Miller, JJ., concur.