You are here: / / THE BANK IN THIS FORECLOSURE ACTION DID NOT HAVE A REASONABLE EXCUSE FOR...
, ,

THE BANK IN THIS FORECLOSURE ACTION DID NOT HAVE A REASONABLE EXCUSE FOR FAILING TO MOVE FOR A DEFAULT JUDGMENT WITHIN THE ONE-YEAR ALLOWED BY STATUTE; IT WAS AN ABUSE OF DISCRETION TO GRANT THE MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined plaintiff did not have a reasonable excuse for failing to move for a default judgment within and year and the motion should not have been granted:

… [T]he one-year period within which the plaintiff had to take proceedings for the entry of a default judgment expired in March 2016 (see CPLR 3215[c]). The plaintiff moved, inter alia, for leave to enter a default judgment against the defendant and for an order of reference in September 2016, 18 months after this matter was released from the foreclosure settlement conference part. Thus, the plaintiff’s motion … for leave to enter a default judgment against the defendant was made beyond the one-year deadline imposed by CPLR 3215(c).

One exception to the mandatory language of CPLR 3215(c) is when “sufficient cause is shown why the complaint should not be dismissed.” “This requires a showing of a reasonable excuse for the delay in moving for leave to enter a default judgment, and a showing that the cause of action is potentially meritorious” … . The determination as to whether an excuse is reasonable is committed to the sound discretion of the court, but reversal is warranted if that discretion is improvidently exercised … .

… [T]he plaintiff’s vague, conclusory, and unsubstantiated assertions that the delay in making its motion was attributable to the time spent in the mandatory foreclosure settlement conference part, and its need to comply with certain administrative orders, were insufficient to excuse the lengthy 18-month delay in moving for leave to enter a default judgment … .

“Since the plaintiff failed to proffer a reasonable excuse, this Court need not consider whether the plaintiff had a potentially meritorious cause of action” … . Bank of N.Y. Mellon v Toscano, 2023 NY Slip Op 02294, Second Dept 5-3-23

Practice Point: If plaintiff does not have a reasonable excuse for failing to move for a default judgment within the one year allowed by statute, it is an abuse of discretion to grant the motion and whether there is a meritorious cause of action is irrelevant.

 

You might also like
UNWARNED STATEMENTS MADE DURING CUSTODIAL INTERROGATION AND STATEMENTS MADE IN THE ABSENCE OF COUNSEL SHOULD HAVE BEEN SUPPRESSED, DEFENSE COUNSEL’S FAILURE TO OBJECT CONSTITUTED INEFFECTIVE ASSISTANCE, SOME UNPRESERVED APPELLATE ISSUES CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT).
FAILURE TO INFORM THE DEFENDANT OF THE SPECIFIC OR MAXIMUM PERIOD OF POSTRELEASE SUPERVISION RENDERED THE GUILTY PLEA INVOLUNTARY (SECOND DEPT).
Injury to Real Property, Waste, Trespass, Conversion and Private Nuisance Actions Based Upon Removal of Trees from Unrecorded Easement
THE ISSUE OF PLAINTIFF’S COMPARATIVE NEGLIGENCE IN THIS BICYCLE-VEHICLE ACCIDENT CASE CAN BE CONSIDERED BECAUSE PLAINTIFF ARGUED HE WAS NOT COMPARATIVELY NEGLIGENT IN HIS MOTION FOR SUMMARY JUDGMENT; PLAINTIFF DID NOT ELIMINATE ALL QUESTIONS OF FACT ABOUT WHETHER HE WAS COMPARATIVELY NEGLIGENT; PLAINTIFF RAN INTO THE DOOR OF DEFENDANT’S CAR AS IT WAS BEING OPENED (SECOND DEPT).
THERE WAS A DE FACTO MERGER SUCH THAT THE SUCCESSOR CORPORATION WAS LIABLE FOR THE TORTS OF ITS PREDECESSOR; THE CORPORATE VEIL WAS PROPERLY PIERCED TO FIND THE OWNER OF THE CORPORATION LIABLE (SECOND DEPT).
No “Civil Conspiracy” Tort in New York; However Conspiracy-Theory Can Link Participants to Underlying Substantive Tort
DEFENDANTS RELIED ON A STATEMENT TRANSLATED FROM SPANISH ATTRIBUTED TO PLAINTIFF BUT FAILED TO SHOW THAT THE TRANSLATION WAS PROVIDED BY A COMPETENT, OBJECTIVE INTERPRETER WHOSE TRANSLATION WAS ACCURATE; THEREFORE THE STATEMENT DID NOT RAISE A QUESTION OF FACT IN THIS LADDER-FALL CASE (SECOND DEPT).
WHERE THE INDICTMENT ALLEGES MORE THAN ONE WAY TO COMMIT THE CHARGED OFFENSE, THE PEOPLE NEED ONLY PROVE ONE (SECOND DEPT).

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

THERE WAS EVIDENCE DEFENDANTS’ EMPLOYEES DIRECTED TRUCKS TO DRIVE OVER... AN OPEN MANHOLE IS NOT AN ELEVATION-RELATED HAZARD COVERED BY LABOR LAW 240(1)...