Opinion
529912
09-17-2020
ONEWEST BANK, F.S.B., Respondent, v. Lynn M. MAZZONE, Also Known as Lynn Mazzone, et al., Appellants, et al., Defendant.
Mann Law Firm, PC, Latham (Matthew J. Mann of counsel), for appellants. Akerman LLP, New York City (Jordan M. Smith of counsel), for respondent.
Mann Law Firm, PC, Latham (Matthew J. Mann of counsel), for appellants.
Akerman LLP, New York City (Jordan M. Smith of counsel), for respondent.
Before: Garry, P.J., Lynch, Aarons, Reynolds Fitzgerald and Colangelo, JJ.
MEMORANDUM AND ORDER
Lynch, J.
Appeal from an order of the Supreme Court (O'Connor, J.), entered May 23, 2019 in Albany County, which granted plaintiff's motion to vacate the dismissal of its foreclosure action.
In November 2006, defendants Lynn M. Mazzone and Jeffrey Mazzone (hereinafter collectively referred to as defendants) executed a note to borrow $172,000 from Quicken Loans, secured by a mortgage against their real property. In April 2011, plaintiff, which had acquired the note, commenced this foreclosure action alleging that defendants failed to make payments on the mortgage since June 2010. Following joinder of issue, Supreme Court (Teresi, J.) granted plaintiff's motion for summary judgment and appointed a referee, a decision we upheld on appeal ( 130 A.D.3d 1399, 1400, 15 N.Y.S.3d 505 [2015] ).
After a series of unsuccessful settlement conferences, Supreme Court (O'Connor, J.) issued a letter order scheduling a status conference for January 31, 2018. In doing so, the court observed that plaintiff had failed to proceed in a timely manner and warned that a failure to appear would result in the case being dismissed pursuant to 22 NYCRR 202.27. When plaintiff failed to appear for the conference, the court sua sponte dismissed the action, albeit without issuing a written order. Plaintiff moved for reconsideration, explaining that there had been a calendaring error. At the rescheduled conference on February 13, 2018, the court orally changed the default dismissal to a conditional dismissal, contingent upon plaintiff filing a motion for a judgment of foreclosure and sale within 30 days (compare CPLR 3126 ). About a month later, plaintiff's counsel requested an extension of the 30–day deadline in order to obtain an affidavit of merit from the client. By letter order dated March 21, 2018, the court denied the request, finding that plaintiff had not offered a sufficient reason for failing to timely obtain the affidavit. Noting that "this case [was] approximately seven years old, and ha[d] a long and tortured history," the court held that the January 2018 default dismissal remained in effect.
In March 2019, plaintiff moved to vacate the dismissal pursuant to CPLR 2221(a), asserting that it had a reasonable excuse for its failure to appear for the January 2018 conference and a meritorious cause of action. In May 2019, following an appearance by the parties, Supreme Court granted plaintiff's motion and vacated the January 2018 dismissal and the March 2018 letter order ratifying same, restoring the action to the calendar. Defendants appeal.
We affirm. " 22 NYCRR 202.27 gives a court the discretion to dismiss an action where [a] plaintiff fails to appear at any scheduled call of a calendar or at any conference" ( Bank of N.Y. v. Harper, 176 A.D.3d 907, 909, 110 N.Y.S.3d 736 [2019] [internal quotation marks, brackets and citation omitted] ). "To vacate a dismissal under 22 NYCRR 202.27, it [is] incumbent upon [a] plaintiff to provide a reasonable excuse for his [or her] failure to appear and to demonstrate a potentially meritorious cause of action" ( Johnson v. Laramay, 176 A.D.3d 1515, 1515–1516, 109 N.Y.S.3d 683 [2019] [citations omitted], lv dismissed 34 N.Y.3d 1149, 119 N.Y.S.3d 431, 142 N.E.3d 114 [2020] ; see Hill v. McCrae, 146 A.D.3d 1131, 1132, 45 N.Y.S.3d 273 [2017] ). "A motion to vacate a prior judgment or order is addressed to the court's sound discretion, subject to reversal only where there has been a clear abuse of that discretion" ( BAC Home Loans Servicing, LP v. Funk, 154 A.D.3d 1244, 1245, 63 N.Y.S.3d 597 [2017] [internal quotation marks and citations omitted] ).
Initially, contrary to defendants' contention, as plaintiff's motion was one to vacate and not to reargue, the motion was not untimely (see CPLR 2221[a], [d][3] ; 5015[a][1]; Preferred Mut. Ins. Co. v. DiLorenzo, 183 A.D.3d 1091, 1095, 124 N.Y.S.3d 88 [2020] ).
Here, plaintiff's counsel explained that, due to a scheduling error, the assigned attorney actually appeared in court on the conference date but missed the calendar call. Law office failure may constitute a reasonable excuse for an appearance default (see Bank of N.Y. Mellon Trust Co., N.A. v Talukder, 176 A.D.3d 772, 774, 111 N.Y.S.3d 94 [2019] ; Luderowski v. Sexton, 152 A.D.3d 918, 919–920, 59 N.Y.S.3d 505 [2017] ). Given the isolated nature of this nonappearance, we find that Supreme Court acted within its discretion in reconsidering and vacating the default dismissal (see Luderowski v. Sexton, 152 A.D.3d at 919–920, 59 N.Y.S.3d 505 ; Goldman v. Cotter, 10 A.D.3d 289, 291, 781 N.Y.S.2d 28 [2004] ). Notably, plaintiff supported its vacatur motion with a duly executed affidavit of merit from its representative. We further recognize that plaintiff has a meritorious cause of action, as we affirmed the award of summary judgment in plaintiff's favor ( 130 A.D.3d at 1400–1401, 15 N.Y.S.3d 505 ). Under the circumstances presented, we conclude that the court acted within its discretion in granting the motion to vacate.
Garry, P.J., Aarons, Reynolds Fitzgerald and Colangelo, JJ., concur. ORDERED that the order is affirmed, with costs.