You are here: / / DEFENDANT’S PARTICIPATION IN A SETTLEMENT CONFERENCE DID NOT WAIVE...
,

DEFENDANT’S PARTICIPATION IN A SETTLEMENT CONFERENCE DID NOT WAIVE HIS RIGHT TO SEEK DISMISSAL OF THE FORECLOSURE ACTION AS ABANDONED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant in this foreclosure action did not waive his right to seek dismissal of the complaint by participating in a settlement conference. The plaintiff bank had abandoned the action:

CPLR 3215(c) states that “if [a] 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…upon its own initiative or on motion.” The language of CPLR 3215(c) is not discretionary, and a claim for which a default judgment is not sought within the requisite one-year period will be deemed abandoned … . Notwithstanding, a claim will not be deemed abandoned if the party seeking a default judgment provides sufficient cause as to why the complaint should not be dismissed (CPLR 3215[c]). Here, plaintiff waited almost three years to seek a default judgment, and it failed to provide sufficient cause as to why the complaint should not be dismissed. As such, plaintiff’s complaint is dismissed as abandoned.

Plaintiff’s argument that defendant waived his right to seek dismissal pursuant to 3215(c) because he participated in the settlement conferences is equally unavailing. Although a party may waive it rights under CPLR 3215(c) “by serving an answer or taking any other steps which may be viewed as a formal or informal appearance”…,  defendant’s participation in settlement conferences did not constitute either a formal or an informal  appearance “since [he] did not actively litigate the action before the Supreme Court or participate in the action on the merits” … . Wells Fargo Bank, N.A. v Martinez, 2020 NY Slip Op 01693, First Dept 3-12-20

 

You might also like
CIVIL SERVICE LAW 75-B SERVES THE SAME PURPOSE AS THE EMPLOYMENT ANTI-RETALIATION STATUTES IN THE NEW YORK STATE AND NEW YORK CITY HUMAN RIGHTS LAW; EVEN THOUGH PLAINTIFF HAD RESIGNED AT TIME OF THE SUIT, HIS RETALIATION CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).
THE CONTRACT PROVISIONS MANDATING ARBITRATION WERE PROPERLY ENFORCED BY SUPREME COURT (FIRST DEPT).
NO DUTY OWED BY CAB COMPANY TO GENERAL PUBLIC, PLAINTIFF INJURED BY THE CAB AFTER THE DRIVER WAS RENDERED UNCONSCIOUS DURING A ROBBERY. 
AFTER TWICE ADMITTING OWNERSHIP OF THE AREA OF PLAINTIFF’S SLIP AND FALL, DEFENDANTS SHOULD NOT HAVE BEEN ALLOWED TO AMEND THEIR ANSWER TO DENY OWNERSHIP AFTER THE STATUTE OF LIMITATIONS HAD RUN (FIRST DEPT).
One Year Statute of Limitations in Labor Law 740 Trumps the One-Year-Ninety-Days Statute of Limitations in General Municipal Law 50-e(5) (Incorporated Into the Health & Hospitals Corporation Act)
Exclusion from Coverage of Claims Brought By or On Behalf of a Governmental Entity Applied to a Qui Tam Case Brought by a Private Party Pursuant to the Federal and State False Claims Acts Re: Medicare and Medicaid Over-Billing—the Private Party (“Relator”) Is Bringing the Action On Behalf of the Government, Which Is the Real Party In Interest
REVERSIBLE ERROR TO REFUSE TO INSTRUCT THE JURY ON RES IPSA LOQUITUR AND MULTIPLE DWELLING LAW LIABILITY IN THIS ELEVATOR ACCIDENT CASE.
PLAINTIFF FAILED TO SATISFY HIS BURDEN TO PROVE HIS INJURIES WERE CAUSED BY A PARTICULAR TRAIN AND THE OPERATOR OF THE TRAIN WAS NEGLIGENT; GRANT OF MOTION TO SET ASIDE THE PLAINTIFF’S VERDICT AFFIRMED.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING; DEFENSE... WATER CAP IN A SIDEWALK WAS A TRIVIAL DEFECT, SLIP AND FALL ACTION PROPERLY...