Opinion
2020–09389 Index No. 10776/08
08-16-2023
DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., appellant, v. Arthur CAMPBELL, respondent, et al., defendants.
Houser, LLP, New York, NY (David S. Yohay and Kathleen M. Massimo of counsel), for appellant.
Houser, LLP, New York, NY (David S. Yohay and Kathleen M. Massimo of counsel), for appellant.
ANGELA G. IANNACCI, J.P., LARA J. GENOVESI, DEBORAH A. DOWLING, HELEN VOUTSINAS, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated October 26, 2020. The order, insofar as appealed from, denied that branch of the plaintiff's motion which was, in effect, pursuant to CPLR 2221(a) to vacate an order of the same court dated September 17, 2013, among other things, sua sponte, directing dismissal of the complaint pursuant to CPLR 3215(c).
ORDERED that the order dated October 26, 2020, is reversed insofar as appealed from, on the law, without costs or disbursements, and that branch of the plaintiff's motion which was, in effect, pursuant to CPLR 2221(a) to vacate the order dated September 17, 2013, among other things, sua sponte, directing dismissal of the complaint pursuant to CPLR 3215(c) is granted.
In April 2008, the plaintiff commenced this action against the defendant Arthur Campbell (hereinafter the defendant), among others, to foreclose a mortgage encumbering real property located in Brooklyn. After the defendant failed to answer or otherwise appear, in December 2008, the plaintiff moved, inter alia, for an order of reference. By order dated October 15, 2010, the Supreme Court granted the plaintiff's motion. Thereafter, in an order dated September 17, 2013 (hereinafter the dismissal order), the court, after a status conference, among other things, sua sponte, directed dismissal of the complaint pursuant to CPLR 3215(c). On January 12, 2015, the plaintiff commenced a separate action (hereinafter the 2015 action) against the defendant, among others, to foreclose the mortgage. In December 2019, the plaintiff moved in this action, inter alia, in effect, pursuant to CPLR 2221(a) to vacate the dismissal order. The defendant opposed the motion. In an order dated October 26, 2020, the court denied the motion. The plaintiff appeals.
The Supreme Court should have granted that branch of the plaintiff's motion which was, in effect, pursuant to CPLR 2221(a) to vacate the dismissal order. A motion pursuant to CPLR 2221(a) is not subject to any specific time limitation (see U.S. Bank N.A. v. Thompson, 189 A.D.3d 1643, 1644, 140 N.Y.S.3d 65 ). Where, as here, an order directing dismissal of a complaint is not appealable as of right because it did not decide a motion made on notice, it is procedurally proper for the aggrieved party to move pursuant to CPLR 2221(a) to vacate that order (see id. ). 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)" ( HSBC Bank USA, N.A. v. Roldan, 155 A.D.3d 942, 944, 64 N.Y.S.3d 111 [internal quotation marks omitted]; see Aurora Loan Servs., LLC v. Bandhu, 175 A.D.3d 1470, 1471, 106 N.Y.S.3d 895 ). Nor is a plaintiff required to specifically seek the entry of a judgment within a year (see Aurora Loan Servs., LLC v. Bandhu, 175 A.D.3d at 1471, 106 N.Y.S.3d 895 ; Wells Fargo Bank, N.A. v. Daskal, 142 A.D.3d 1071, 1072–1073, 37 N.Y.S.3d 353 ). As 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 Aurora Loan Servs., LLC v. Bandhu, 175 A.D.3d at 1471, 106 N.Y.S.3d 895 ; HSBC Bank USA, N.A. v. Roldan, 155 A.D.3d at 944, 64 N.Y.S.3d 111 ).
Here, the plaintiff initiated proceedings for the entry of a judgment by moving for an order of reference in December 2008, which was within one year of the defendant's default in the action (see Deutsche Bank Natl. Trust Co. v. Lamarre, 211 A.D.3d 811, 812, 181 N.Y.S.3d 128 ; Deutsche Bank Natl. Trust Co. v. Hasan, 188 A.D.3d 649, 650, 135 N.Y.S.3d 159 ; Aurora Loan Servs., LLC v. Bandhu, 175 A.D.3d at 1471, 106 N.Y.S.3d 895 ). Since the plaintiff did not abandon the action, the Supreme Court erred in, sua sponte, directing dismissal of the complaint pursuant to CPLR 3215(c) (see Deutsche Bank Natl. Trust Co. v. Lamarre, 211 A.D.3d at 812, 181 N.Y.S.3d 128 ). Moreover, under the circumstances of this case, vacatur of the dismissal order was not precluded on the ground that the plaintiff commenced the 2015 action after the court directed dismissal of the complaint in this action (see Bank of Am., N.A. v. Ali, 202 A.D.3d 726, 728, 163 N.Y.S.3d 156 ).
Accordingly, the Supreme Court should have granted that branch of the plaintiff's motion which was, in effect, pursuant to CPLR 2221(a) to vacate the dismissal order.
IANNACCI, J.P., GENOVESI, DOWLING and VOUTSINAS, JJ., concur.