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MOTION TO VACATE DEFAULT DID NOT WAIVE RIGHT TO MOVE TO DISMISS THE FORECLOSURE ACTION AS ABANDONED.

The Second Department, reversing Supreme Court, determined the defendant’s right to make a motion to dismiss the foreclosure cause of action as abandoned was not waived by defendant’s motion to vacate the default and file a late answer:

Contrary to the plaintiff’s contention, the defendant did not waive the right to seek dismissal of the complaint pursuant to CPLR 3215(c) by moving to vacate her default and for leave to serve a late answer. “The 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” … . A defendant may waive the right to seek a 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” … . However, a motion pursuant to CPLR 3012(d) for leave to serve an untimely answer does not constitute either a formal (see CPLR 320) or informal appearance … . HSBC Bank USA, N.A. v Grella, 2016 NY Slip Op 08199, 2nd Dept 12-7-16

FORECLOSURE (MOTION TO VACATE DEFAULT DID NOT WAIVE RIGHT TO MOVE TO DISMISS THE FORECLOSURE ACTION AS ABANDONED)/DISMISS, MOTION TO (CIVIL, MOTION TO VACATE DEFAULT DID NOT WAIVE RIGHT TO MOVE TO DISMISS THE FORECLOSURE ACTION AS ABANDONED)/DEFAULT, MOTION TO VACATE (MOTION TO VACATE DEFAULT DID NOT WAIVE RIGHT TO MOVE TO DISMISS THE FORECLOSURE ACTION AS ABANDONED)/ABANDONMENT OF ACTION (MOTION TO VACATE DEFAULT DID NOT WAIVE RIGHT TO MOVE TO DISMISS THE FORECLOSURE ACTION AS ABANDONED)

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