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You are here: Home1 / Civil Procedure2 / FORECLOSURE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED, PLAINTIFF BANK TOOK...
Civil Procedure, Foreclosure

FORECLOSURE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED, PLAINTIFF BANK TOOK PRELIMINARY STEPS TOWARD OBTAINING A DEFAULT JUDGMENT WITHIN ONE YEAR OF DEFENDANTS’ DEFAULT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the foreclosure complaint should not have been dismissed on the ground that the bank had not taken proceedings for the entry of a default judgment within a year of defendants’ default. It was enough that the bank took preliminary steps toward obtaining a default judgment within the year:

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)” … . “Rather, it is enough that the plaintiff timely takes the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference’ to establish that it initiated proceedings for entry of a judgment within one year of the default’ for the purposes of satisfying CPLR 3215(c)” … . Here, the plaintiff took the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference … within one year of the defendants’ default and, thus, did not abandon the action … . Deutsche Bank Natl. Trust Co. v Delisser, 2018 NY Slip Op 03504, Second Dept 5-16-18

​FORECLOSURE (DEFAULT, FORECLOSURE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED, PLAINTIFF BANK TOOK PRELIMINARY STEPS TOWARD OBTAINING A DEFAULT JUDGMENT WITHIN ONE YEAR OF DEFENDANTS’ DEFAULT (SECOND DEPT))/CIVIL PROCEDURE (DEFAULT, FORECLOSURE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED, PLAINTIFF BANK TOOK PRELIMINARY STEPS TOWARD OBTAINING A DEFAULT JUDGMENT WITHIN ONE YEAR OF DEFENDANTS’ DEFAULT (SECOND DEPT))/CPLR 3315 (DEFAULT, FORECLOSURE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED, PLAINTIFF BANK TOOK PRELIMINARY STEPS TOWARD OBTAINING A DEFAULT JUDGMENT WITHIN ONE YEAR OF DEFENDANTS’ DEFAULT (SECOND DEPT))/DEFAULT (CIVIL PROCEDURE, FORECLOSURE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED, PLAINTIFF BANK TOOK PRELIMINARY STEPS TOWARD OBTAINING A DEFAULT JUDGMENT WITHIN ONE YEAR OF DEFENDANTS’ DEFAULT (SECOND DEPT))

May 16, 2018
Tags: Second Department
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WAIVER OF APPEAL INVALID; MATTER REMITTED FOR THE STATUTORILY REQUIRED FINDINGS FOR THE DENIAL OF DEFENDANT’S SUPPRESSION MOTION; APPEAL HELD IN ABEYANCE (SECOND DEPT).
PLAINTIFF, AN HVAC WORKER, LEANED ON A PIPE RAILING AS HE WAITED FOR AN ELEVATOR TO TAKE HIM TO THE FLOOR WHERE HIS WORK SITE WAS; THE PIPE RAILING GAVE WAY AND PLAINTFF FELL FOUR OR FIVE FEET TO A CONCRETE SLAB; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).
CERTIFICATE OF READINESS WHICH INDICATED FURTHER DISCOVERY WAS NECESSARY RENDERED THE FILING OF THE NOTE OF ISSUE A NULLITY (SECOND DEPT).
THE NEGLIGENT SUPERVISION ACTION AGAINST PHYSICAL-THERAPY DEFENDANTS SOUNDED IN MEDICAL MALPRACTICE REQUIRING EXPERT OPINION EVIDENCE; THE DOCTRINE OF OSTENSIBLE OR APPARENT AGENCY RAISED A QUESTION OF FACT WHETHER THE PHYSICAL-THERAPY FACILITY WAS VICARIOUSLY LIABLE FOR THE ALLEGED NEGLIGENCE OF THE THERAPIST, WHO WAS AN INDEPENDENT CONTRACTOR (SECOND DEPT).
THERE WAS NO PROPER FOUNDATION FOR THE DEFENSE EXPERT’S TESTIMONY IN THIS TRAFFIC ACCIDENT CASE, DEFENSE VERDICT FINDING THAT PLAINTIFF DID NOT SUFFER A SERIOUS INJURY WAS NECESSARILY BASED ON THE DEFENSE EXPERT’S TESTIMONY, VERDICT WAS PROPERLY SET ASIDE (SECOND DEPT).
DECLARATORY JUDGMENT ACTION SEEKING A DETERMINATION OF THE OWNERSHIP OF A STOCK CERTIFICATE REPRESENTING SHARES IN A COOPERATIVE APARTMENT IS GOVERNED BY A THREE-YEAR STATUTE OF LIMITATIONS, THE STOCK CERTIFICATE IS PERSONAL NOT REAL PROPERTY (SECOND DEPT).
THE BANK IN THIS FORECLOSURE ACTION DID NOT PRESENT SUFFICIENT EVIDENCE OF DEFENDANTS’ DEFAULT (SECOND DEPT).
COUNTY COURT SHOULD HAVE FURTHER RESTRICTED DISCOVERY FOR THE PROTECTION OF WITNESSES (SECOND DEPT).

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