“Initiating Proceedings” Under CPLR 3215(c) Revisited
Print Article- Posted on: Feb 7 2025
Today we revisit CPLR 3215(c), a provision addressed by this BLOG several times before. See, e.g., [here], [here], [here], [here], [here], [here] and [here].
As previously discussed in our prior BLOGS, and by way of brief background, CPLR 3215(c) provides, in pertinent part, that:
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…. (Emphasis added.)
Courts have held that the language of CPLR 3215(c) is mandatory in the first instance unless plaintiff demonstrates “sufficient cause” for the failure to timely “take proceedings for the entry of [a default] judgment]”. See, e.g., US Bank v. Onuoha, 162 A.D.3d 1094, 1095 (2nd Dep’t 2018); Wells Fargo Bank v. Cafasso, 158 A.D.3d 848, 849 (2nd Dep’t 2018); see also Doe v. Garfinkel, 2025 WL 322930 at *1 (January 29, 2025). The Cafasso Court (quoting Giglio v. NTIMP, Inc., 86 A.D.3d 301 (2nd Dep’t 2011)), noted that “sufficient cause” “‘requir[es] both a reasonable excuse for the delay in timely moving for a default judgment, plus a demonstration that the cause of action is potentially meritorious.’” Cafasso, 158 A.D.3d at 849; see also Wells Fargo Bank, N.A. v. Robinson-John, 220 A.D.3d 974, 977 (2nd Dep’t 2023). The “reasonableness” of an excuse is within the sound discretion of the motion court. See, e.g., Onuoha, 162 A.D.3d at 1095 – 96 (citations omitted); Cafasso, 158 A.D.3d at 849 (citations omitted); Doe, 2025 WL 322930 at *1. The Doe Court noted that although “a court has the discretion to accept law office failure as a reasonable excuse, such excuse must be supported by detailed allegations of fact explaining the law office failure.” Doe, 2025 WL 322930 at *1 (citations and internal quotation marks omitted).
Finally, a default judgment need not be obtained within one year, as long as proceedings to obtain a default judgment have been initiated. See, e.g., Saxon Mortgage Services, Inc. v. Reynoso, 232 A.D.3d 642, 643-44 (2nd Dep’t 2024); Bank of America v. Lucido, 163 A.D.3d 614, 615 (2nd Dep’t 2018); see also Bank of America, N.A. v. Bhola, 219 A.D.3d 430, 432 (2nd Dep’t 2023); Mort. Electronic Registration Systems, Inc. v. McVicar, 203 A.D.3d 915, 916 – 17 (2nd Dep’t 2022). The Court in Citibank, N.A. v. Kerszko, 203 A.D.3d 42 (2nd Dep’t 2022),[1] addressed, for the first time, whether a rejected proposed order to show cause for an order of reference “qualifies as a taking of proceedings for the entry of judgment pursuant to CPLR 3215(c), so as to avoid dismissal of the complaint as abandoned under the statute.” Kerszko, 203 A.D.3d at 43-44. The Kerszko Court held that it did. The Court held that the relevant inquiry in determining whether “proceedings have been taken” should be focused on the intent of the plaintiff. Thus, the Court, being unmoved by the trial court’s failure to sign a proposed order to show cause, stated:
The relevant inquiry, therefore, is not the form that an application takes when presented to the court or its result. Rather, it is the intent that can be inferred from an application presented to the court seeking to have the action “proceed,” inconsistent with that of an abandonment of the plaintiff’s claims.
Kerszko, 203 A.D.3d at 52.
Against this backdrop, we discuss Wells Fargo Bank, N. A. v. Wint, a mortgage foreclosure action[2] decided by the Appellate Division, Second Department, on February 5, 2025. The lender in Wint commenced a foreclosure action in 2010, in which the borrower failed to appear. Upon the borrower’s default, and within a year of the default, the lender moved for an order of reference. In 2011 the motion was denied, without prejudice, due to the lender’s failure to establish compliance with RPAPL 1304.[3] The same relief was sought by the lender later in 2011 but was again denied without prejudice. In 2012, the trial court, sua sponte, dismissed the action as abandoned pursuant to CPLR 3215(c). Almost two years later, the lender moved pursuant to CPLR 2221(a) “to vacate the dismissal order and to restore the action to the active calendar.” In 2015 this motion, too, was denied. Thereafter, the lender moved for “leave to reargue and renew its prior motion to vacate the dismissal order and to restore the action to the active calendar.” In 2022, the trial court granted renewal and reargument but adhered to its earlier decision. The lender appealed the 2015 and 2022 orders.
The Second Department reversed. In finding that the lender timely “initiated proceedings” to take a default, the Court stated:
Here, the [lender] initiated proceedings for the entry of a judgment by moving for an order of reference within one year of the [borrower]’s default in the action. The fact that the Supreme Court rejected the motion as defective is beside the point, as the mere presentment of it established the [lender]’s intent to proceed toward the entry of judgment and not to abandon the action. Since the [lender] did not fail to take timely proceedings for a judgment against the [borrower] within the meaning of CPLR 3215(c), the [lender] was not required to demonstrate an excuse for its purported delay in moving to vacate the dismissal. Moreover, the [lender]’s motion, inter alia, in effect, pursuant to CPLR 2221(a) to vacate the dismissal order was not subject to any specific time limitation. Accordingly, the Supreme Court should have granted the [lender]’s motion, in effect, pursuant to CPLR 2221(a) to vacate the dismissal order and to restore the action to the active calendar. (Citations and internal quotation marks omitted.)
Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.
This article is for informational purposes and is not intended to be and should not be taken as legal advice.
[1] This BLOG addressed the Kerszko decision promptly upon its issuance [here].
[2] To find one of our numerous BLOG articles related to mortgage foreclosure, visit the “Blog” tile on our website and enter “mortgage foreclosure,” or any other related search term in the “search” box.
[3] This BLOG has written numerous articles about RPAPL 1304. To find such articles, visit the “Blog” tile on our website and enter “1304” in the “search” box.
