Opinion
13426 Index No. 850238/18 Case No. 2020-00091
03-25-2021
U.S. BANK NATIONAL ASSOCIATION, Successor TRUSTEE TO BANK OF AMERICA, NATIONAL ASSOCIATION as Successor by Merger to LaSalle Bank NA as Trustee for Washington Mutual Mortgage Pass–Through Certificates WAMU Series 2007–OA4 Trust, Plaintiff–Appellant, v. Sherry KIM et al., Defendants, Robert L. Gordons LLC, Defendant–Respondent.
Parker Ibrahim & Berg LLP, New York (Robert N. Pollock of counsel), for appellant. Villanti Law Group PLLC, Brooklyn (Christopher Villanti of counsel), for respondent.
Parker Ibrahim & Berg LLP, New York (Robert N. Pollock of counsel), for appellant.
Villanti Law Group PLLC, Brooklyn (Christopher Villanti of counsel), for respondent.
Renwick, J.P., Mazzarelli, Singh, Gonza´lez, JJ.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered November 18, 2019, which, inter alia, granted the motion of defendant Robert L. Gordons LLC for summary judgment dismissing the complaint, unanimously reversed, on the law, with costs, the motion denied, the complaint reinstated, and the matter remanded for consideration of plaintiff's motion for summary judgment and an order of reference on its claim seeking to foreclose on a mortgage.
In 2018, Supreme Court granted defendant's motion pursuant to CPLR 3215(c) to dismiss the complaint in the prior, 2010 foreclosure action for plaintiff's failure to seek a default judgment within one year of defendant's default. The dismissal order did not include any findings of specific conduct demonstrating a general pattern of delay in proceeding with the litigation, as required to preclude the application of CPLR 205(a) for failure to prosecute ( U.S. Trust, N.A. v. Moomey–Stevens, 168 A.D.3d 1169, 91 N.Y.S.3d 788 [3d Dept. 2019] ; Wells Fargo Bank, N.A. v. Eitani, 148 A.D.3d 193, 47 N.Y.S.3d 80 [2d Dept. 2017], appeal dismissed 29 N.Y.3d 1023, 55 N.Y.S.3d 157, 77 N.E.3d 892 [2017] ). Under the circumstances, the court should not have granted defendant's motion to dismiss the complaint in the present action as time-barred, as this action was timely brought within six months after the motion court dismissed plaintiff's first foreclosure action (see CPLR 205[a] ).