Opinion
2016–08959 Index No. 3769/09
07-11-2018
BANK OF AMERICA, NATIONAL ASSOCIATION, etc., appellant, v. Galina LUCIDO, etc., defendants, John A. Lucido, respondent.
Gross Polowy, LLC, Westbury, N.Y. (Stephen J. Vargas of counsel), for appellant.
Gross Polowy, LLC, Westbury, N.Y. (Stephen J. Vargas of counsel), for appellant.
WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Jeffrey Arlen Spinner, J.), dated May 10, 2016. The order, sua sponte, directed dismissal of the complaint pursuant to CPLR 3215(c) and cancellation of the notice of pendency filed against the subject property, and denied, in effect, as academic, the plaintiff's motion, inter alia, for a judgment of foreclosure and sale.
ORDERED that on the Court's own motion, the notice of appeal from so much of the order as, sua sponte, directed dismissal of the complaint pursuant to CPLR 3215(c) and cancellation of the notice of pendency filed against the subject property is deemed to be an application for leave to appeal from those portions of the order, and leave to appeal is granted (see CPLR 5701[c] ); and it is further,
ORDERED that the order is reversed, on the facts and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, before a different Justice, for reinstatement of the complaint and the notice of pendency, and for a determination on the merits of the plaintiff's motion, inter alia, for a judgment of foreclosure and sale.
The plaintiff commenced this mortgage foreclosure action in January 2009 against, among others, the defendants Galina Lucido and John A. Lucido (hereinafter together the defendants). In December 2009, following the defendants' failure to answer the complaint, the Supreme Court granted the plaintiff's unopposed motion for an order of reference. The plaintiff thereafter moved for a judgment of foreclosure of sale, but then withdrew the motion on April 12, 2011. In a judgment dated April 16, 2012, the Supreme Court sanctioned the plaintiff for failing to negotiate in good faith during mandatory foreclosure settlement conferences (see CPLR 3408 ). On the plaintiff's appeal, in a decision and order dated February 13, 2014, this Court reversed the judgment (see Bank of Am., N.A. v. Lucido, 114 A.D.3d 714, 981 N.Y.S.2d 433 ). Subsequently, the plaintiff moved, inter alia, for a judgment of foreclosure and sale. In an order dated May 10, 2016, the Supreme Court, sua sponte, directed dismissal of the complaint pursuant to CPLR 3215(c) and cancellation of the notice of pendency, and, in effect, denied the plaintiff's motion as academic. The plaintiff appeals. We reverse.
CPLR 3215(c) provides that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after [a] default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." It is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant to CPLR 3215(c) (see HSBC Bank USA, N.A. v. Roldan, 155 A.D.3d 942, 944, 64 N.Y.S.3d 111 ; Aurora Loan Servs., LLC v. Gross, 139 A.D.3d 772, 773, 32 N.Y.S.3d 249 ; U.S. Bank N.A. v. Dorestant, 131 A.D.3d 467, 469, 15 N.Y.S.3d 142 ). So long as the plaintiff has initiated proceedings for the entry of a judgment within one year of the default, there is no basis for dismissal of the complaint pursuant to CPLR 3215(c) (see HSBC Bank USA, N.A. v. Roldan, 155 A.D.3d at 944, 64 N.Y.S.3d 111 ; HSBC Bank USA N.A. v. Traore, 139 A.D.3d 1009, 1010, 32 N.Y.S.3d 283 ; Wells Fargo Bank, N.A. v. Combs, 128 A.D.3d 812, 813, 10 N.Y.S.3d 121 ). Here, the plaintiff took the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference (see RPAPL 1321[1] ) within one year of the defendants' default (see HSBC Bank USA, N.A. v. Roldan, 155 A.D.3d at 944, 64 N.Y.S.3d 111 ; Aurora Loan Servs., LLC v. Gross, 139 A.D.3d at 774, 32 N.Y.S.3d 249 ; Klein v. St. Cyprian Props., Inc., 100 A.D.3d 711, 712, 954 N.Y.S.2d 170 ). There was no evidence that the plaintiff intended to abandon the action. Accordingly, the Supreme Court improvidently exercised its discretion in sua sponte directing dismissal of the complaint pursuant to CPLR 3215(c) and cancellation of the notice of pendency (see Aurora Loan Servs., LLC v. Gross, 139 A.D.3d at 774, 32 N.Y.S.3d 249 ; Citimortgage, Inc. v. Espinal, 136 A.D.3d 857, 859, 26 N.Y.S.3d 541 ).
Since the Supreme Court did not consider the merits of the plaintiff's motion, inter alia, for a judgment of foreclosure and sale, we remit the matter to the Supreme Court, Suffolk County, before a different Justice, for reinstatement of the complaint and the notice of pendency, and for a determination on the merits of the motion (see Downey Sav. & Loan Assn., F.A. v. Aribisala, 147 A.D.3d 911, 912, 47 N.Y.S.3d 413 ; Deutsche Bank Natl. Trust Co. v. Martin, 134 A.D.3d 665, 665, 19 N.Y.S.3d 777 ; Emigrant Mtge. Co., Inc. v. Gosdin, 119 A.D.3d 639, 640, 989 N.Y.S.2d 609 ; Klein v. St. Cyprian Props., Inc., 100 A.D.3d at 712, 954 N.Y.S.2d 170 ).
MASTRO, J.P., COHEN, CONNOLLY and BRATHWAITE NELSON, JJ., concur.