Opinion
03-03-2016
WELLS FARGO BANK, N.A., Respondent, v. Richard ADICKES, Also Known as Richard J. Adickes, et al., Appellants, et al., Defendants.
Russell A. Schindler, Kingston, for appellants. Reed Smith, LLP, New York City (Joseph B. Teig of counsel), for respondent.
Russell A. Schindler, Kingston, for appellants.
Reed Smith, LLP, New York City (Joseph B. Teig of counsel), for respondent.
Before: McCARTHY, J.P., EGAN JR., LYNCH and CLARK, JJ.
CLARK, J.
Appeal from an order of the Supreme Court (Work, J.), entered May 1, 2015 in Ulster County, which granted plaintiff's motion for an order of reference.
In November 2008, defendants Richard Adickes and Debra Adickes (hereinafter collectively referred to as defendants) executed a note that was secured by a mortgage on real property located in Ulster County. The note was subsequently assigned to plaintiff, and the assignment was filed with the Ulster County Clerk in February 2012. In August 2013, plaintiff commenced the instant mortgage foreclosure action against, among others, defendants. Three court conferences were held and, at each conference, Supreme Court stayed the action for a period of time with the final stay expiring on October 31, 2014. In March 2015, following defendants' default in answering the complaint, plaintiff moved for an order of reference. In opposition to plaintiff's motion, defendants argued that Supreme Court should dismiss the complaint as abandoned pursuant to CPLR 3215(c). Supreme Court rejected defendants' claim and granted plaintiff's motion for an order of reference. Defendants now appeal.
Initially, as before us, defendants do not reiterate the argument raised in opposition to plaintiff's motion before Supreme Court. Instead, for the first time on appeal, defendants improperly advance a new argument (see Rentways, Inc. v. O'Neill Milk & Cream Co., 308 N.Y. 342, 349, 126 N.E.2d 271 [1955] ), an argument we therefore decline to consider (see Albany Eng'g Corp. v. Hudson River/Black Riv. Regulating Dist., 110 A.D.3d 1220, 1222, 973 N.Y.S.2d 391 [2013] ). In any event, were we to address the merits, we would nonetheless find that the court-ordered stays constitute sufficient cause for plaintiff's failure to seek a default judgment within one year of defendants' failure to answer or otherwise appear in this action (see CPLR 3215[c] ; 22 NYCRR 202.12–a [c][7]; PHH Mtge. Corp. v. Davis, 111 A.D.3d 1110, 1113, 975 N.Y.S.2d 480 [2013], lv. dismissed 23 N.Y.3d 940, 987 N.Y.S.2d 593, 10 N.E.3d 1148 [2014] ).
As such, this argument is deemed abandoned (see Science Applications Intl. Corp. v. Environmental Risk Solutions, LLC, 132 A.D.3d 1161, 1163 n. 1, 18 N.Y.S.3d 751 [2015] ).
ORDERED that the order is affirmed, with costs.
McCARTHY, J.P., EGAN JR. and LYNCH, JJ., concur.