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PLAINTIFF BANK’S MOVING FOR SUMMARY JUDGMENT TWO YEARS AFTER THE DEFENDANT’S DEFAULT DID NOT DEMONSTRATE IT DID NOT INTEND TO ABANDON THE ACTION; THEREFORE DEFENDANT WAS ENTITLED TO DISMISSAL OF THE COMPLAINT PURSUANT TO CPLR 3215 (C) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not demonstrate an adequate excuse for failure to take steps to enter a default judgment in this foreclosure action within one year of the default:

The plaintiff’s … argument … [is] that, by moving for summary judgment and leave to enter a default judgment … , the plaintiff had “manifest[ed] its intent not to abandon this case.” However, while “[i]t is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant to CPLR 3215(c)” … , and a plaintiff is not even required to specifically seek a default judgment within a year, but may take “the preliminary step toward obtaining a default judgment of foreclosure and sale by moving . . . for an order of reference pursuant to RPAPL 1321” … that preliminary step still must be taken “within one year of [a defendant’s] default” … . Here, since the plaintiff moved for summary judgment and an order of reference almost two years after the default, when the statutory time within which to enter a default had long since expired, it was too late for the plaintiff to “manifest an intent not to abandon the case” … so as to avoid dismissal of the complaint … . US Bank N..A.. v Davis, 2021 NY Slip Op 04251, Second Dept 7-7-21

 

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