OneWest Bank v. Lara

11 Citing cases

  1. OneWest Bank v. Villafana

    2024 N.Y. Slip Op. 4973 (N.Y. App. Div. 2024)

    The Supreme Court also properly denied the defendants' cross-motion pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against them as abandoned. A defendant may waive the right to seek dismissal of the complaint pursuant to CPLR 3215(c) by serving an answer or taking any other steps which may be viewed as a formal or informal appearance (see Bank of Am., N.A. v Lichter, 192 A.D.3d 957, 957; OneWest Bank, FSB v Lara, 192 A.D.3d 695, 697). Here, the defendants waived their right to seek dismissal of the complaint insofar as asserted against them pursuant to CPLR 3215(c) by their active participation in the litigation (see Bank of Am., N.A. v Carapella, 218 A.D.3d 631, 633; OneWest Bank, FSB v Lara, 192 A.D.3d at 697).

  2. Christiana Tr. v. Victor

    2024 N.Y. Slip Op. 994 (N.Y. App. Div. 2024)

    However, a defendant may waive the right to seek dismissal pursuant to CPLR 3215(c) by serving an answer or taking "any other steps which may be viewed as a formal or informal appearance" (Myers v Slutsky, 139 A.D.2d 709, 711). Here, the plaintiff correctly argues that the defendant waived his right to seek dismissal of the complaint in the 2016 action insofar as asserted against him by serving an untimely answer in the action (see OneWest Bank, FSB v Lara, 192 A.D.3d 695, 697).

  3. Fed. Nat'l Mortg. Ass'n v. Marty

    219 A.D.3d 581 (N.Y. App. Div. 2023)   Cited 1 times

    The order dated December 12, 2017, did not resolve on the merits whether the plaintiff abandoned the action pursuant to CPLR 3215(c) (seeCitiMortgage, Inc. v. Goldstein, 187 A.D.3d at 843, 134 N.Y.S.3d 352 ). Additionally, the notice of appearance filed by Miss Jones simultaneously with its cross-motion did not constitute a waiver of the right to seek dismissal pursuant to CPLR 3215(c) (seeJP Morgan Chase Bank, N.A. v. Jacobowitz, 176 A.D.3d 1191, 1192, 111 N.Y.S.3d 391 ; cf. Bank of Am., N.A. v. Lichter, 192 A.D.3d 957, 957, 140 N.Y.S.3d 775 ; OneWest Bank, FSB v. Lara, 192 A.D.3d 695, 697, 139 N.Y.S.3d 843 ; see generallyMyers v. Slutsky, 139 A.D.2d 709, 710, 527 N.Y.S.2d 464 ). Opteum, Miss Jones's predecessor in interest, defaulted by failing to answer the complaint within the requisite time after service was complete, which would have been in December 2013, and the matter was released from the mandatory settlement conference part in April 2015.

  4. U.S. Bank v. Black

    2022 N.Y. Slip Op. 5732 (N.Y. App. Div. 2022)

    "The filing of a notice of appearance in an action by a party's counsel serves as a waiver of any objection to personal jurisdiction in the absence of either the service of an answer which raises a jurisdictional objection, or a motion to dismiss pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction" (U.S. Bank N.A. v Pepe, 161 A.D.3d 811, 812; see U.S. Rof III Legal Tit. Trust 2015-1 v John, 189 A.D.3d 1645, 1649). Here, the defendant filed a notice of appearance on August 20, 2018, and did not either file an answer asserting lack of personal jurisdiction or move to dismiss the complaint on that ground. Thus, the defendant waived any defense of lack of personal jurisdiction (see OneWest Bank, FSB v Lara, 192 A.D.3d 695, 696; U.S. Rof III Legal Tit. Trust 2015-1 v John, 189 A.D.3d at 1649). Further, since the defendant never moved to vacate her default, she was precluded from raising nonjurisdictional defenses, including that the plaintiff failed to comply with RPAPL 1304 (see Wilmington Trust, N.A. v Ashe, 189 A.D.3d 1130, 1132; Deutsche Bank Natl. Trust Co. v Hall, 185 A.D.3d 1006, 1011).

  5. HSBC Bank U.S. v. Ranasinghe

    No. 2021-06610 (N.Y. App. Div. Nov. 24, 2021)

    CPLR 3215(c) provides, in pertinent part, 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, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." "A defendant may waive the right to seek dismissal pursuant to CPLR 3215(c) by serving an answer or taking any other steps which may be viewed as a formal or informal appearance" (Bank of Am., N.A. v Lichter, 192 A.D.3d 957, 957 [internal quotation marks omitted]; see OneWest Bank, FSB v Lara, 192 A.D.3d 695, 697; U.S. Rof III Legal Tit. Trust 2015-1 v John, 189 A.D.3d 1645, 1650).

  6. HSBC Bank USA, Nat'l Ass'n v. Ranasinghe

    199 A.D.3d 993 (N.Y. App. Div. 2021)   Cited 3 times

    CPLR 3215(c) provides, in pertinent part, 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, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." "A defendant may waive the right to seek dismissal pursuant to CPLR 3215(c) by serving an answer or taking any other steps which may be viewed as a formal or informal appearance" ( Bank of Am., N.A. v. Lichter, 192 A.D.3d 957, 957, 140 N.Y.S.3d 775 [internal quotation marks omitted]; seeOneWest Bank, FSB v. Lara, 192 A.D.3d 695, 697, 139 N.Y.S.3d 843 ; U.S. Rof III Legal Tit. Trust 2015–1 v. John, 189 A.D.3d 1645, 1650, 140 N.Y.S.3d 59 ). Here, the defendant waived the right to seek dismissal pursuant to CPLR 3215(c) by cross-moving for a declaration that she was not in default and for leave to file a late answer, without seeking to dismiss the complaint pursuant to CPLR 3215(c) as abandoned at that time (seeOneWest Bank, FSB v. Bernstein, 196 A.D.3d 591, 147 N.Y.S.3d 442 ; Bank of Am., N.A. v. Lichter, 192 A.D.3d 957, 140 N.Y.S.3d 775 ; Deutsche Bank Natl. Trust Co. v. Abrahim, 183 A.D.3d 698, 121 N.Y.S.3d 904 ; Myers v. Slutsky, 139 A.D.2d 709, 710, 527 N.Y.S.2d 464 ).

  7. HSBC Bank U.S. v. Ranasinghe

    No. 2018-10346 (N.Y. App. Div. Nov. 24, 2021)

    CPLR 3215(c) provides, in pertinent part, 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, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." "A defendant may waive the right to seek dismissal pursuant to CPLR 3215(c) by serving an answer or taking any other steps which may be viewed as a formal or informal appearance" (Bank of Am., N.A. v Lichter, 192 A.D.3d 957, 957 [internal quotation marks omitted]; see OneWest Bank, FSB v Lara, 192 A.D.3d 695, 697; U.S. Rof III Legal Tit. Trust 2015-1 v John, 189 A.D.3d 1645, 1650).

  8. U.S. Bank v. BJ Org. of N.Y.

    2023 N.Y. Slip Op. 50556 (N.Y. Sup. Ct. 2023)

    use for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action'" (see Bank of Am., N.A. v Rice, 155 A.D.3d 593 [2d Dept 2017] quoting Aurora Loan Servs., LLC v Hiyo, 130 A.D.3d 763 [2d Dept 2015] citing HSBC Bank USA, N.A. v Grella, 145 A.D.3d 669 [2d Dept 2016]; Pipinias v. J. Sackaris & Sons, Inc., 116 A.D.3d 749 [2d Dept 2014])."Moreover, '[t]he mere fact that the legislative intent underlying CPLR § 3215 [c] was to prevent the plaintiffs from unreasonably delaying the determination of an action, does not foreclose the possibility that a defendant may waive the right to seek a dismissal pursuant to the section by his or her conduct'" (see id quoting Myers v. Slutsky, 139 A.D.2d 709 [2d Dept 1988]). "[A] defendant may waive the right to seek dismissal pursuant to CPLR § 3215 [c] by serving an answer or taking 'any other steps which may be viewed as a formal or informal appearance'" (see OneWest Bank, FSB v Lara, 192 A.D.3d 695 [2d Dept 2021] quoting Bank of Am., N.A. v Rice, 155 A.D.3d 593 [2d Dept 2017]; quoting Myers v. Slutsky, 139 A.D.2d 709 [2d Dept 1988]). A party waives their right to seek dismissal of the complaint pursuant to CPLR § 3215 [c] by filing a notice of appearance (see Bank of Am., N.A. v. Lichter, 192 A.D.3d 957 [2d Dept 2021] citing CPLR § 320 [a]; U.S. Rof III Legal Tit. Trust 2015-1 v John, 189 A.D.3d 1645 [2d Dept 2020]; Wilmington Sav. Fund Socy., FSB v Chishty, 179 A.D.3d 1147 [2d Dept 2020]; US Bank N.A. v Gustavia Home, LLC, 156 A.D.3d 843 [2d Dept 2017]; Bank of Am., N.A. v Rice, 155 A.D.3d 593 [2d Dept 2017]).

  9. JPMorgan Chase Bank v. Gluck

    2022 N.Y. Slip Op. 30349 (N.Y. Sup. Ct. 2022)

    Nonetheless, '"[a] defendant may waive the right to seek dismissal pursuant to CPLR 3215 (c) by serving an-answer or taking any other steps which may be viewed as a formal or informal appearance'' (Bank of Am., N.A. v Rice, 155 A.D.3d 593, 594 [2d Dept 2Q17] [internal quotation marks omitted; emphasis added]). Here, although the: plaintiff failed to move for leave to enter a default judgment as against: Mayer within One year of his default in answering the complaint, under the circumstances of this case, the subsequent tiling of a notice of appearance on Mayer's behalf by Attorney Bronstein in May 2014, as well as the latter's service of a motion to restore in March 2015, constituted a waiver of Mayer's right to seek dismissal of the complaint as against him under CPLR 3215 (c) (see OneWest Bank, FSB v Lara, 192 A.D.3d 695, 697 [2d Dept 2021]).

  10. HSBC Bank U.S. v. Ranasinghe

    2021 N.Y. Slip Op. 6610 (N.Y. Sup. Ct. 2021)

    CPLR 3215(c) provides, in pertinent part, 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, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." "A defendant may waive the right to seek dismissal pursuant to CPLR 3215(c) by serving an answer or taking any other steps which may be viewed as a formal or informal appearance" (Bank of Am., N.A. v Lichter, 192 A.D.3d 957, 957 [internal quotation marks omitted]; see OneWest Bank, FSB v Lara, 192 A.D.3d 695, 697; U.S. Rof III Legal Tit. Trust 2015-1 v John, 189 A.D.3d 1645, 1650). Here, the defendant waived the right to seek dismissal pursuant to CPLR 3215(c) by cross-moving for a declaration that she was not in default and for leave to file a late answer, without seeking to dismiss the complaint pursuant to CPLR 3215(c) as abandoned at that time (see OneWest Bank, FSB v Bernstein, 196 A.D.3d 591; Bank of Am., N.A. v Lichter, 192 A.D.3d 957; Deutsche Bank Natl. Trust Co. v Abrahim, 183 A.D.3d 698; Myers v Slutsky, 139 A.D.2d 709, 710).