Opinion
2018-14742 Index No. 8654/09
03-24-2021
BANK OF AMERICA, N.A., respondent, v. Menachem LICHTER, et al., appellants.
Condon Catina & Mara, PLLC, Nanuet, N.Y. (Amy M. Mara and Brian Condon of counsel), for appellants. Pincus Law Group, PLLC, Uniondale, N.Y. (Barry M. Weiss of counsel), for respondent.
Condon Catina & Mara, PLLC, Nanuet, N.Y. (Amy M. Mara and Brian Condon of counsel), for appellants.
Pincus Law Group, PLLC, Uniondale, N.Y. (Barry M. Weiss of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendants appeal from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Rockland County (Paul I. Marx, J.), dated September 28, 2018. The order and judgment, insofar as appealed from, denied that branch of the defendants' cross motion which was pursuant to CPLR 3215(c) to dismiss the complaint as abandoned.
ORDERED that the order and judgment of foreclosure and sale is affirmed insofar as appealed from, with costs.
CPLR 3215(c) provides that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned ... unless sufficient cause is shown why the complaint should not be dismissed" (see Bank of Am., N.A. v. Rice, 155 A.D.3d 593, 593, 63 N.Y.S.3d 486 ). However, "[a] defendant may waive the right to seek dismissal pursuant to CPLR 3215(c) by serving an answer or taking any other steps which may be viewed as a formal or informal appearance" ( id. at 594, 63 N.Y.S.3d 486 [internal quotation marks omitted]; see U.S. Rof III Legal Tit. Trust 2015–1 v. John, 189 A.D.3d 1645, 140 N.Y.S.3d 59 ; Wilmington Sav. Fund Socy., FSB v. Chishty, 179 A.D.3d 1147, 1148–1149, 114 N.Y.S.3d 701 ; US Bank N.A. v. Gustavia Home, LLC, 156 A.D.3d 843, 844, 67 N.Y.S.3d 242 ). Here, the defendants waived their right to seek dismissal of the complaint pursuant to CPLR 3215(c) by filing a notice of appearance in 2016 (see CPLR 320[a] ; U.S. Rof III Legal Tit. Trust 2015–1 v. John, 189 A.D.3d 1645, 140 N.Y.S.3d 59 ; Wilmington Sav. Fund Socy., FSB v. Chishty, 179 A.D.3d at 1148–1149, 114 N.Y.S.3d 701 ; US Bank N.A. v. Gustavia Home, LLC, 156 A.D.3d at 844, 67 N.Y.S.3d 242 ; Bank of Am., N.A. v. Rice, 155 A.D.3d at 594, 63 N.Y.S.3d 486 ). Therefore, the Supreme Court correctly denied that branch of the defendants' cross motion which was pursuant to CPLR 3215(c) to dismiss the complaint as abandoned.
CHAMBERS, J.P., HINDS–RADIX, DUFFY and CHRISTOPHER, JJ., concur.