Supreme Court, Kings County, Holds That A Settlement Conference RJI Fails to Satisfy the “Take Proceedings” Requirement of CPLR 3215(c) Necessary to Avoid Dismissal
Print Article- Posted on: Nov 21 2025
On October 31, 2025, the Supreme Court, Kings County, decided loanDepot.com LLC v. Ortner, a case addressing the meaning of the “taking proceedings” requirement of CPLR 3215(c).[1] By way of brief background, when a defendant defaults in appearing in an action,[2] CPLR 3215(c) requires that the plaintiff act promptly to secure a default judgment. As previously discussed in prior BLOG articles, 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). A default judgment need not be obtained within one year, as long as proceedings to obtain a default judgment have been initiated. See 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).
Numerous cases have addressed the issue of the meaning of “taking proceedings” and this BLOG has addressed this issue in “ ‘Initiating Proceedings’ Under CPLR 3215(c) Revisited” and “Second Department Finds that Requesting Foreclosure Settlement Conference Satisfies Requirement for ‘Taking Proceedings’ Under CPLR 3215(c)”. In the latter article we discussed the Second Department’s decision in U.S. Bank N.A. v. Jerriho-Cadogan, 224 A.D.3d 788 (2nd Dep’t 2024), in which the Court, following its decision in Citimortgage, Inc v. Zaibak, 188 A.D.3d 982 (2nd Dep’t 2020), held that filing a settlement conference RJI satisfied the “taking proceedings” requirement.
loanDepot is a mortgage foreclosure action[3] in which the court was presented with “a question of statutory construction with significant consequences for foreclosure litigation in New York: whether the filing of a request for judicial intervention for purposes of convening a mandatory settlement conference-an act required before a defendant is in default-constitutes the ‘taking of proceedings for the entry of judgment after the default’ within the meaning of CPLR 3215(c).” Disagreeing with the Second Department’s decision in Zaibak and its progeny, the loanDepot court determined it did not. The loanDepot Court noted that pursuant to “22 NYCRR 202.12-a(b)(l), the Request for Judicial Intervention (“RJI”) for a settlement conference must be filed ‘at the same time as proof of service’; and under CPLR 3408(a)(1), proof of service must be filed within twenty days of service.’” (Emphasis in original.) Thus, the court concluded, that in “every foreclosure action subject to CPLR 3408 settlement conferences … the RJI must be filed before the defendant’s time to answer has expired-before a default can occur as a matter of law.”
For a variety of reasons (each of which the court found sufficient to warrant a departure from Zaibak), the court concluded that a settlement conference RJI does not constitute “taking proceedings.”[4] First, the court concluded that Zaibak conflicted with the legislative and regulatory scheme because of the timing issues previously mentioned. Simply stated, in foreclosure actions settlement conference RJIs, generally, are required to be filed before a default occurs. Accordingly, “Zaibak inverts CPLR 3215(c) by treating a pre-default filing as compliance with a post-default statutory mandate.” (Emphasis in original.) Thus, CPLR 3215(c) and 3408 cannot be harmonized under Zaibak. However, “[t]his statutory tension disappears once CPLR 3215(c) is construed the way every Department of the Appellate Division (including the Second Department, save for the aberrant Zaibak line of cases) has already construed it: the phrase ‘take proceedings’ means a motion for judicial relief directed toward the entry of a default judgment, not the ministerial filing of an RJI.”
Second, Zaibak is “irreconcilable” with the express language of CPLR 3125(d) — which relates to multi-defendant situations in which a defendant answers and another defendant defaults — and requires the plaintiff to make “‘an application to the court’ ‘within one year of the default’ before a default can be taken against the nonappearing party.” Thus, the “statutory text leaves no doubt that the Legislature required a judicial application – not a ministerial filing such as an RJI – to qualify as the taking of proceedings.’” (Internal brackets omitted.)
Third, the loanDepot court noted that the statutory purpose of CPLR 3215 (c), which was drafted decades before the foreclosure conference RJI requirement, was the entry of judgment. The purpose of the settlement conference was loss mitigation. Thus:
a settlement-conference RJI cannot constitute “tak[ing] proceedings for the entry of judgment” within the meaning of CPLR 3215(c) for a fundamental threshold reason: when CPLR 3215(c) was enacted in 1962 …, the Legislature had not yet created-nor even contemplated-the mandatory settlement conference procedure codified decades later in 22 NYCRR 202.12-a. A later-adopted court rule cannot possibly retroactively redefine a statutory term (and the intent of the legislature in enacting it) that predates it. The Legislature designed CPLR 3215(c) to require post-default prosecutorial action for the entry of a judgment, not a ministerial administrative filing created years later for a wholly different purpose.
Fourth, the ministerial steps involved with the filing of an RJI “do not seek adjudication” and, therefore, “are not ‘proceedings’ for judgment.” The filing of the RJI is “a predicate to negotiation-not adjudication” and CPLR 3215(c), “calls for proceedings for the entry of judgment,” which implicates “the court’s authority to determine rights or grant judicial relief.”
Fifth, the court noted that of CPLR 3215(c) “reflects a legislative judgment that dormant claims should not be kept alive indefinitely and that plaintiffs bear the responsibility to prosecute their actions diligently,” and provides for mandatory dismissal if violated. “Because the statute’s purpose is to compel diligence in prosecuting actions to judgment, with the attendant benefit of clearing court backlogs, its effect necessarily evaporates if courts begin carving out judicial exceptions based on sympathetic facts, administrative filings, or post- default settlement procedures.”
Finally, the court spent significant time analyzing why “Zaibak and its progeny are not precedentially dispositive under stare decisis [and concluded that] Zaibak neither raised nor considered the specific questions presented here.”
Ultimately, the court concluded that dismissal of the action was mandatory because the plaintiff failed to move for a default judgment within a year of defendant’s default and the filing of an RJI did not satisfy the “taking proceedings” requirement of CPLR 3215.
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 has written numerous articles addressing CPLR 3215(c). To find such articles, please see the BLOG tile on our website and type “CPLR 3215(c)” into the “search” box.
[2] This BLOG has previously addressed issues related to a defendant’s appearance in an action. See, e.g., [here], [here], [here] and [here].
[3] This BLOG has written dozens of articles addressing numerous aspects of residential mortgage foreclosure. To find such articles, please see the BLOG tile on our website and search for any foreclosure, or other commercial litigation, issue that may be of interest you.
[4] The loanDepot court provides a thoughtful and detailed analysis of each of the bases of its decision, and we will briefly summarize each one.
Tagged with: CPLR 3215(c), Default Judgement, Mortgage Foreclosure Litigation, Mortgage Litigation
