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PLAINTIFF BANK DID NOT PRESENT SUFFICIENT EVIDENCE TO DEMONSTRATE IT TOOK ACTION TO ENTER A DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION WITHIN ONE YEAR OF DEFENDANT’S DEFAULT; THE ACTION SHOULD HAVE BEEN DISMISSED AS ABANDONED PURSUANT TO CPLR 3215 (c) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not present sufficient evidence that it commenced proceedings to enter a default judgment within one year of the default. Therefore the bank had abandoned the action:

… [T]he plaintiff … relies upon two pages in the record. The first of those two pages is a “CamScanner” copy of the face sheet of a proposed order of reference reflecting the caption of this action, a blank line over the words “(ORD OF REF) FEE PAID,” and a pagination of “Page 1 of 2.” The page is devoid of markings that it was ever presented to any Justice of the Supreme Court as no name is written next to “Hon.” above the caption, and no presentment date is reflected in the blank spaces at the upper right-hand corner of the document where the date and month of presentments are typically identified. There is nothing that indicates that this document was ever filed with the court. The second “CamScanner” page relied upon by the plaintiff, delineated as “Page 2 of 2,” reflects what appears to be either a 2010 or 2019 date stamp, in an unreadable month and date, at 12:07 p.m., with two looping lines that may or may not be a penned signature. The date stamp does not identify it as being placed upon the document by any particular person, entity, or court, and does not contain the word “Filed.” Both of the pages relied upon by the plaintiff contain in their lower right-hand corners the notation “Printed: 10/5/20,” without a full readable year. No other pages comprising the purported proposed order of reference were provided, though the first page, which ends in mid-sentence, is clearly not the entirety of the document.

Since CPLR 3215(c) provides that courts “shall” dismiss actions as abandoned where the plaintiff fails to take proceedings within one year after a default “unless sufficient cause is shown,” the burden was upon the plaintiff to establish sufficient cause as to why the complaint should not be dismissed in this instance … . Here, the burden was not met. HSBC Mtge. Corp. v Hasan, 2020 NY Slip Op 05036, Second Dept. 9-23-20

 

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