McCABE, WEISBERG et al Attys. For Plaintiff 145 Huguenot St. - Ste. 210 New Rochelle, NY 10801 JOHN J. CARACCIOLO, ESQ. Atty. For Defendant John McDonnell 1 Hewitt Sq. - #144 E. Northport, NY 11731
McCABE, WEISBERG et al Attys. For Plaintiff 145 Huguenot St. - Ste. 210 New Rochelle, NY 10801 JOHN J. CARACCIOLO, ESQ. Atty. For Defendant John McDonnell 1 Hewitt Sq. - #144 E. Northport, NY 11731 Thomas F. Whelan, J.
Upon the following papers numbered 1 to7read on this motionTo dismiss; Notice of Motion/Order to Show Cause and supporting papers 1 - 4; Notice of Cross Motion and supporting papers:; Opposing papers:5; Reply papers7; Other 6 (affidavit); (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that this motion (#001) by the defendant, John McDonnell, for an order dismissing the action, is denied in its entirety; and it is further
ORDERED that Plaintiff is directed to file its motion for summary judgment within forty-five (45) days of entry of the instant Order.
ORDERED that plaintiff is directed to file a notice of entry within five days of receipt of this Order pursuant to 22 NYCRR § 202.5-b(h)(2).
This is an action to foreclose a mortgage on residential real property situate in Northport. In essence, on May 4, 2005, defendant John McDonnell borrowed $312,000.00 from plaintiff's predecessor in interest and executed a promissory note and, together with Mariel McDonnell, a mortgage. The defendant defaulted by failing to pay the monthly installments due and owing on December 1, 2014. This action was thereafter commenced on July 25, 2016. Defendants, John McDonnell and Mariel McDonnell, were served with the summons and complaint, amongst other filings, on July 28, 2016, and an answer was served upon plaintiff's counsel via FedEx on August 17, 2016, on both defendants' behalf, through counsel, Kenneth S. Pelsinger LLC, asserting forty six affirmative defenses and five counterclaims. A conference pursuant to CPLR 3408 was scheduled for and held on October 26, 2016, at which the defendants failed to appear. On March 15, 2018, a status conference was held before this Court, at which time plaintiff's counsel appeared and represented to the Court that an answer had been received on the defendants' behalf, and that the parties were currently engaged in loss mitigation review. Plaintiff's counsel thereafter appeared at a follow up conference held on April 15, 2018, and advised that the loss mitigation review had been denied and that plaintiff was preparing its motion for summary judgment.
Defendant, John McDonnell, through new counsel, filed the instant motion on February 28, 2019, seeking dismissal of the complaint pursuant to CPLR 3215(c). 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" (CPLR 3215[c] [emphasis added]; HSBC Bank USA , N.A. v Hasis , 154 AD3d 832, 833, 62 NYS3d 467 [2d Dept 2017], citing Wells Fargo Bank , NA v Bonanno , 146 AD3d 844, 45 NYS3d 173 [2d Dept 2017]). To avoid dismissal, the plaintiff need not actually obtain nor specifically seek the default judgment within one year (see HSBC Bank USA , NA v Hasis , 154 AD3d at 833, supra; see also Wells Fargo Bank , N.A. v Daskal , 142 AD3d 1071, 1072, 37 NYS3d 353 [2d Dept 2016]). As long as "proceedings" are being taken that manifest "an intent not to abandon the case but to seek a judgment, the case should not be subject to dismissal" ( Wells Fargo Bank , NA v Daskal , 142 AD3d 1071, 1073, 37 NYS3d 353 [2d Dept 2016], citing Brown v Rosedale Nurseries , 259 AD2d 256, 257, 686 NYS2d 22 [1st Dept 1999]; US Bank NA v Dorestant , 131 AD3d 467, 469, 15 NYS3d 142 [2d Dept 2015]; Wells Fargo Bank , N.A. v Combs , 128 AD3d 813,813, 10 NYS3d 257 [2d Dept 2015]; Klein v St . Cyprian Props., Inc., 100 AD3d 711, 712, 954 NYS2d 170 ; Pisciotta v Lifestyle Designs , Inc., 62 AD3d 850, 852, 879 NYS2d 179 [2d Dept 2009]; Icon Equip . Distribs. v Gordon Envtl. & Mech. Corp., 272 AD2d 579, 579 709 NYS2d 426 [2d Dept 2000]).
Notwithstanding the above, a defendant may waive the right to seek relief under CPLR 3215(c) by serving an answer or taking "any other steps which may be viewed as a formal or informal appearance" ( HSBC Bank USA , Natl. Assn. v Grella , 145 AD3d 669, 44 NYS3d 56 [2d Dept 2016] quoting Meyers v Slusky , 139 AD2d 709, 527 NYS3d 464 [2d Dept 1988]; see DeLourdes Torres v Jones , 26 NY3d 742, 772, 27 NYS3d 468 ; HSBC Bank USA v Lugo , 127 AD3d 502, 503, 9 NYS3d 6 [2d Dept 2015]; Hodson v Vinnie's Farm Mkt ., 103 AD3d 549, 959 NYS2d 440 [2d Dept 2013]; Gilmore v Gilmore , 286 AD2d 416, 730 NYS2d 239 [2d Dept 2001]). The Second Department recently reaffirmed the rule that a defendant may waive the right to seek relief under CPLR 3215(c) by his or her conduct (see Bank of America , N.A. v Rice , 155 AD3d 593, 63 NYS3d 486 [2d Dept 2017]).
The defendant contends that because one year has elapsed since defendant's default and plaintiff failed to commence proceedings for the entry of default judgment during that time, the action must be dismissed. The record reflects, however, that the movant served an answer, through counsel, on August 17, 2016. A "defendant appears by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer" (CPLR 320[a]). Additionally, pursuant to CPLR 320(b), "[a]n appearance of the defendant is equivalent to personal service of the summons upon him, unless an objection to jurisdiction under CPLR 3211(a)(8) is asserted by motion or in the answer as provided in [CPLR 3211]" (CPLR 320[b]). Here, because the defendant filed an answer in August 2016, he has thus waived any claims to relief under CPLR 3215(c).
In response, the defendant notes that he did not retain or authorize Mr. Pelsinger or his law office to file an answer on his behalf in this action, and he "rejects and disavows" the Answer. He submits an affirmation of Kenneth Pelsinger dated March 18, 2019 in which Mr. Pelsinger notes that he has not and does not represent the defendant, John McDonnell, in this action, and asserts that if any documents were sent by his office, they were sent in error and should be ignored by the Court.
First, the Court gives no consideration to the "affirmation" of Mr. Pelsinger, as Mr. Pelsinger was disbarred and is prohibited from the practice of law pursuant to the Order dated August 29, 2018 (see Matter of Pelsinger , 164 AD3d 189, 82 NYS3d 607 [2d Dept 2018]), thus precluding him from providing an affirmation in any case.
Notwithstanding, however, the application still fails. Despite the answer and plaintiff's reliance on such, the plaintiff has not demonstrated an intent to abandon the action, as plaintiff appeared at the foreclosure settlement conference and at two subsequent status conferences during which plaintiff's counsel notified the Court of the parties settlement negotiation discussion and the subsequent denial of such. Attendance at these conferences demonstrated the plaintiff's intent to proceed with the action.
Based on the above, the motion #001 is denied. Plaintiff is directed to file its motion for summary judgment within forty-five (45) days of entry of the instant Order. DATED: June 27, 2019 __________ THOMAS F. WHELAN, J.S.C.