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FORECLOSURE ACTION ABANDONED, BANK FAILED TO INITIATE DEFAULT JUDGMENT PROCEEDINGS WITHIN ONE YEAR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff bank had abandoned the foreclosure action by failure to move for a default judgment within one year. The bank’s participation in mandatory settlement conferences did not constitute the initiation of an action for a default judgment:

CPLR 3215(c) provides, in part, that if the plaintiff fails to take proceedings for the entry of judgment within one year after the defendant’s default, “the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion” … . “The language of CPLR 3215(c) is not, in the first instance, discretionary, but mandatory, inasmuch as courts shall’ dismiss claims … for which default judgments are not sought within the requisite one-year period, as those claims are then deemed abandoned” … . However, the failure to timely seek a default judgment may be excused if “sufficient cause is shown why the complaint should not be dismissed” … . To establish sufficient cause as required by CPLR 3215(c), a plaintiff must proffer a reasonable excuse for the delay in timely moving for a default judgment and demonstrate that it has a potentially meritorious cause of action … .

… [A]fter this action was released from the mandatory foreclosure settlement conference part in July 2016, the plaintiff was authorized to proceed with the prosecution of this action. However, despite the fact that the appellants failed to answer or otherwise appear in the action after being served with process, the plaintiff took no steps to initiate proceedings for the entry of a default judgment against the appellants. The plaintiff’s participation in the mandatory foreclosure settlement part conferences did not constitute the initiation of proceedings for the entry of a default judgment. Moreover, more than one year passed from the time that the plaintiff was authorized to resume prosecution of this action prior to the appellants moving in October 2017 to dismiss the complaint as abandoned …. In light of the plaintiff’s failure to meet its burden to show sufficient cause why the complaint should not be dismissed as abandoned, it is not necessary to address the issue of whether the plaintiff demonstrated that it had a potentially meritorious cause of action … . HSBC Bank USA, N.A. v Slone, 2019 NY Slip Op 05963, Second Dept 7-31-19

 

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PLAINTIFFS’ EXPERT DID NOT SPECIALIZE IN THE RELEVANT AREA OF MEDICINE, HIS AFFIDAVIT THEREFORE DID NOT RAISE A QUESTION OF FACT, THERE WAS A QUESTION OF FACT WHETHER THE EMERGENCY EXCEPTION APPLIED TO THE GENERAL RULE A HOSPITAL IS NOT LIABLE FOR THE TREATMENT PROVIDED BY PRIVATE ATTENDING PHYSICIANS (SECOND DEPT).
Review Criteria for Actions by Zoning Boards of Appeal
THE 2008 FORECLOSURE ACTION WAS DISMISSED BECAUSE THE BANK DID NOT HAVE STANDING; THEREFORE THE DEBT WAS NOT ACCELERATED IN 2008 AND THE STATUTE OF LIMITATIONS FOR FORECLOSURE DID NOT START RUNNING; PLAINTIFF’S ACTION TO CANCEL AND DISCHARGE THE MORTGAGE PROPERLY DISMISSED (SECOND DEPT).
THE PROOF THE DEFENDANT WAS PROPERLY SERVED WAS NOT REBUTTED BY THE DEFENDANT’S UNSUBSTANTIATED ALLEGATIONS, SUPREME COURT REVERSED (SECOND DEPT).
FAMILY COURT SHOULD NOT HAVE REVIEWED THE SUPPORT MAGISTRATE’S NONFINAL ORDER AND GRANTED FATHER’S OBJECTIONS, FATHER’S ARGUMENT THAT HE WOULD NEED TO PAY ATTORNEY’S FEES AND SPEND TIME AWAY FROM WORK TO LITIGATE THE MATTER DID NOT RISE TO THE LEVEL OF IRREPARABLE HARM NEEDED TO JUSTIFY A REVIEW OF A NONFINAL ORDER (SECOND DEPT).
SUPREME COURT SHOULD NOT HAVE DISMISSED THE FORECLOSURE ACTION, AN ADMINISTRATIVE ORDER REQUIRING A FORECLOSURE AFFIRMATION AND A CERTIFICATE OF MERIT SHOULD NOT HAVE BEEN APPLIED RETROACTIVELY, A STIPULATION AWARDING SUMMARY JUDGMENT TO THE BANK SHOULD NOT HAVE BEEN IGNORED, THE IMPROPER APPLICATION OF THE ADMINISTRATIVE ORDER RAISED A MATTER OF LAW THAT COULD BE CONSIDERED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).
THE BANK’S PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 WAS INSUFFICIENT (SECOND DEPT).

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