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Dismissals Under 3215(c)

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  • Posted on: Nov 6 2020

CPLR 3215(c), which encourages the prompt entry of default judgments, provides:

If the 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, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.  A motion by the defendant under this subdivision does not constitute an appearance in the action.

This BLOG has previously addressed CPLR 3125(c) [HERE].  “The policy behind CPLR 3215(c) is to prevent parties who have asserted claims from unreasonably delaying the termination of actions, and to avoid inquests on stale claims.”  Giglio v. NTIMP, Inc., 86 A.D.3d 301, 307 (2nd Dep’t 2011) (citations omitted).  

The provisions of CPLR 3125(c) are mandatory, but “may be excused if sufficient cause is shown why the complaint should  not be dismissed.”  Merilus v. Nassau Inter County Express, 130 N.Y.S.3d 395, 396 (2nd Dep’t 2020) (citations omitted).  Sufficient cause can be demonstrated where “plaintiff … proffer[s] a reasonable excuse for the delay in timely moving for a default judgment and demonstrate[s] a potentially meritorious cause of action.”  Id.  

Further, “[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).”  US Bank National Association v. Dorestant, 131 A.D.3d 467, 469 (2nd Dep’t 2015) (citations omitted).  Plaintiff is not “required to specifically seek the entry of a judgment within a year … [a]s long as ‘proceedings’ are being taken, and these proceedings manifest an intent not to abandon the case but to seek a judgment….”  Id. (citations and some internal quotation marks omitted).  In Dorestant, the court found that the plaintiff “took the preliminary step toward obtaining a default judgment of foreclosure and sale by moving, ex parte, for an order of reference, it initiated proceedings for entry of the default judgment of foreclosure and sale within one year of the defendants’ default and, thus, did not abandon the action.”  Id. (citations omitted).

As long as plaintiff did not intend to abandon the action, the complaint will not be dismissed even if the motion on which plaintiff relied to establish that it took proceedings to enter a default is “later withdrawn”.  Aurora Loan Services, LLC v. Bandhu, 175 A.D.3d 1470, 1471 (2nd Dep’t 2019) (citation omitted).  Aurora Loan Services, LLC v. Gross, 139 A.D.3d 772 (2nd Dep’t 2016), was a mortgage foreclosure action.   The Gross plaintiff filed an RJI and moved for an ex parte order of reference within one year of defendants’ default.  The motion was later withdrawn as plaintiff attempted to comply with administrative orders requiring “a plaintiff’s attorney in certain mortgage foreclosure actions to submit an affirmation confirming the accuracy of the allegations in the complaint.”  Id. at 772-73.  The supreme court in Gross “issued an order … which sua sponte directed the dismissal of the complaint pursuant to CPLR 3215 (c), for the plaintiff’s failure to move for leave to enter a default judgment within one year after the defendants’ default.”  Id. at 273.  In reversing supreme court, the Second Department in Gross stated:

Here, the plaintiff initiated proceedings in June 2008 for the entry of a judgment of foreclosure and sale within one year of the defendants’ default by filing the request for judicial intervention seeking an ex parte order of reference. There was no evidence that the plaintiff intended to abandon the action.  Rather, it appears that the plaintiff was attempting to comply with newly imposed requirements for certain mortgage foreclosure actions, which were revised while the action was pending. Under these circumstances, the Supreme Court improvidently exercised its discretion in sua sponte directing the dismissal of the complaint pursuant to CPLR 3215 (c), as no extraordinary circumstances existed to warrant dismissal.

Id. at 774 (citations omitted).

On November 4, 2020, the Second Department decided Deutsche Bank National Trust Co. v. Hasan, which seems to mirror Gross.  In Hasan, plaintiff lender sought to foreclose a mortgage.  Within a year of defendants’ default, lender moved for an order of reference, but “withdrew the motion due to an administrative order of the Supreme Court, Kings County.”   Three years later supreme court “sua sponte, directed dismissal of the complaint as abandoned pursuant to CPLR 3215(c)” and denied lender’s subsequent motion to vacate the dismissal order.  On appeal, the Second Department reversed supreme court.  Consistent with, and relying on, inter alia, Gross, the Hasan Court held that:

Here, the plaintiff took the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference in May 2010, within one year of the defendants’ default.  In such cases, the complaint should not be dismissed pursuant to CPLR 3215(c), even if, as here, the plaintiff’s motion is later withdrawn.

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