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THE BANK’S FAILURE TO OFFER A REASONABLE EXCUSE FOR FAILURE TO COMPLY WITH A COURT RULE REQUIRING THAT A MOTION FOR A JUDGMENT OF FORECLOSURE BE FILED WITHIN ONE YEAR OF THE ENTRY OF THE ORDER OF REFERENCE WARRANTED DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s failure to comply with Kings County Supreme Court Uniform Civil Term Rule 8, which requires the bank to file a motion for judgment of foreclosure withing one year of entry of the order of reference, warranted dismissal of the action:

“Rule 8 requires a plaintiff in a foreclosure action to file a motion for a judgment of foreclosure within one year of entry of the order of reference” … . “Where the plaintiff offers an excuse for its failure to comply with Rule 8, ‘[t]he determination of whether [the] excuse is reasonable is committed to the sound discretion of the motion court'” … . “Reversal is warranted ‘if that discretion is improvidently exercised'” … .

Here, the Supreme Court improvidently exercised its discretion in denying that branch of the defendant’s motion which was to dismiss the complaint insofar as asserted against her for failure to comply with Rule 8. The order of reference was entered on August 28, 2012, * * * [and] the plaintiff failed to provide a reasonable excuse as to why [the bank] did not move for a judgment of foreclosure and sale prior to August 28, 2013. Contrary to the court’s determination, the failure to comply with Rule 8 is a sufficient ground upon which to dismiss a foreclosure action … . Wells Fargo Bank N.A. v Kahan, 2025 NY Slip Op 03354, Second Dept 6-4-25

Practice Point: Here the bank’s failure to comply with a Kings County Supreme Court Uniform Civil Term Rule warranted dismissal of the foreclosure action.

 

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HERE, EVEN THOUGH THE INITIAL ACTION WAS TIMELY ONLY BECAUSE OF THE SIX-MONTH... RPAPL 1304 REQUIRES THAT THE NOTICE OF FORECLOSURE BE MAILED SEPARATELY TO EACH...