The Second Department Holds That Lender Cannot Use CPLR 3215(c) to Avoid Dismissal of Foreclosure Action Despite Death of Borrower

• Posted on: May 9 2025

By: Jonathan H. Freiberger

Today’s article relates to a decision in a mortgage foreclosure action[1] that combines numerous concepts about which we have previously written. We will quickly revisit CPLR 3215(c)[2], which 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….

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. U.S. Bank N.A. v. Pane, __ N.Y.S.3d __, 2025 N.Y. Slip Op. 02619 (2^nd Dep’t April 30, 2025).

We have also addressed the consequences of the death of a party during the pendency of a litigation. See, e.g., [here], [here] and [here]. Because litigation can be a drawn-out process, it is not uncommon for a party to die in the process. CPLR § 1015, which addresses this circumstance, provides, inter alia, that “[i]f a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties.” Significantly, the “death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a). Moreover, any determination rendered without such substitution will generally be deemed a nullity.” Hayden v. Brown, 230 A.D.3d 657, 658 (2^nd Dep’t 2024) (citations and internal quotation marks omitted); see also Sorcigli v. Lombardo, __ N.Y.S.3d __, 2025 N.Y. Slip Op. 02365 (2^nd Dep’t April 23, 2025). The proceedings are generally stayed “pending the substitution of a personal representative for the decedent.” Wells Fargo Bank, N.A. v. Miglio, 197 A.D.3d 776, 777 (2^nd Dep’t 2021) (citations and internal quotation marks omitted); see also Sorcigli, supra, at *1. However, “if a party’s death does not affect the merits of a case, there is no need for strict adherence to the requirement that the proceedings be stayed pending substitution.” Wells Fargo Bank, N.A. v. Miglio, 197 A.D.3d 776, 777 (2^nd Dep’t 2021)(citation and internal quotation marks omitted); see also Nationstar Mortgage, LLC v. Persaud, 231 A.D.3d 842 (2^nd Dep’t 2024).[3]

Against this backdrop, today we discuss U.S. Bank N.A. v. Sanon, a case decided by the Appellate Division, Second Department, on May 7, 2025. In January 2009, the lender in Sanon commenced an action to foreclose a mortgage delivered by the borrower to secure the repayment of his obligations under a promissory note. The borrower was promptly served with process[4] but failed to appear in the action or answer the complaint and, accordingly, was in default in or about February of 2009. The borrower died in July of 2012.

Subsequently, the lender moved for leave to enter a default judgment[5] and for an order of reference. While the motion was unopposed, it was denied by the motion court by an order entered in October of 2015, in which the motion court “also directed dismissal of the complaint pursuant to CPLR 3215(c) based on the [lender]’s failure to take proceedings for the entry of judgment within one year of [the borrower]’s default in appearing or answering the complaint….”

Thereafter, in 2020, the lender moved pursuant to CPLR 5015(a)(4)[6] to vacate the dismissal order and to restore the action to the active calendar “arguing that the Supreme Court was without jurisdiction to enter the order because [the borrower] had died prior to the issuance of the dismissal order and, thus, the court was divested of jurisdiction until such time as a legal representative of the estate was substituted for the deceased defendant in this action.” The motion was denied and the lender appealed.

The Second Department affirmed. After discussing some of the legal issues addressed, supra, the Court stated:

However, if a party’s death does not affect the merits of a case, there is no need for strict adherence to the requirement that the proceedings be stayed pending substitution. Indeed, a mortgagor who has been duly served with notice of a foreclosure action and defaults in appearing is not entitled to notice of any subsequent judgment or sale.

…It is undisputed that [the borrower] failed to appear or answer the complaint. Since [the borrower] defaulted in appearing or answering the complaint approximately 3½ years prior to his death, neither he nor any of his successors in interest was entitled to notice of a judgment of foreclosure or of an ensuing sale of the subject property. Pursuant to CPLR 3215(c), the [lender]’s time to take proceedings for the entry of judgment expired approximately 2½ years prior to [the borrower]’s death.

Under the circumstances, the Supreme Court correctly determined that [the borrower]’s death did not affect the merits of this action, and there was no need to strictly adhere to the requirement for a stay pending substitution. Since the court was not divested of jurisdiction upon [the borrower]’s death, the dismissal order was properly issued. Accordingly, the court properly denied the [lender]’s motion pursuant to CPLR 5015(a)(4) to vacate the dismissal order, to restore the action to the active calendar, and to substitute the administrator of [the borrower’s] estate in place of [the borrower]. [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 has written dozens of articles addressing various 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 to you.

[2] This BLOG has written numerous articles addressing CPLR 3215(c). To find such articles, please see the BLOG tile on our website and type “3215(c)” into the “search” box.

[3] This BLOG has previously written about Persaud [here].

[4] This BLOG has addressed various issues related to service of process. See, e.g., [here], [here], [here], [here], [here] and [here].

[5] This BLOG has previously addressed default judgments. See, e.g., [here], [here], [here] and [here].

[6] CPLR 5015 permits the court to vacate its own judgment or order under certain circumstances set forth therein. This BLOG has previously written about CPLR 5015. See, e.g., [here], [here], [here], [here].