Deutsche Bank Trust Company Americas v Smith
Attorneys and Parties
Brief Summary
Mortgage foreclosure; consequences of delay in seeking default judgment under New York Civil Practice Law and Rules (CPLR) 3215(c) and the requirement that a judgment conform to an appellate mandate.
Upon remittitur, the Supreme Court dismissed the complaint against the defendant under CPLR 3215(c) without prejudice and added a directive permitting the plaintiff to commence a new action under Brothers v. Florence.
The provision authorizing the plaintiff to file a new action pursuant to Brothers v. Florence, 95 NY2d 290 (2000), was deleted.
Under CPLR 3215(c) [dismissal of complaint as abandoned if the plaintiff fails to take proceedings for the entry of judgment within one year after a default], dismissal is for failure to prosecute and not on the merits, so it is properly without prejudice. However, a judgment must strictly conform to the appellate court’s prior decision, which did not grant permission to file a new action; therefore, that directive was improper and was stricken.
Background
The plaintiff commenced a foreclosure action in May 2008 against, among others, David J. Smith, Jr., who defaulted in answering or appearing. In 2018, Smith moved to dismiss under CPLR 3215(c), arguing abandonment; the Supreme Court denied that relief. In December 2022, the Appellate Division reversed and directed dismissal under CPLR 3215(c). On April 17, 2023, the Supreme Court entered a judgment dismissing the complaint against Smith without prejudice and added language permitting a new action under Brothers v. Florence. Smith appealed from the portions of the judgment declaring the dismissal without prejudice and authorizing a new action.
Lower Court Decision
The Supreme Court, Suffolk County, entered judgment dismissing the complaint against Smith pursuant to CPLR 3215(c), without prejudice, and further directed that the plaintiff was permitted to file a new action against Smith in accordance with Brothers v. Florence.
Appellate Division Reversal
Modified, on the law and the facts, by deleting the provision permitting the plaintiff to file a new action under Brothers v. Florence; as modified, the judgment was affirmed, with costs to Smith. The court reiterated that dismissals under CPLR 3215(c) are not on the merits and are without prejudice, and held that the judgment must conform strictly to the Appellate Division’s prior decision, which did not authorize new-action relief. The plaintiff’s contentions regarding the Foreclosure Abuse Prevention Act (FAPA) [L 2022, ch 821; effective Dec. 30, 2022] were not considered as they were not properly before the court.
Legal Significance
Confirms two principles: (1) a CPLR 3215(c) dismissal is a non-merits dismissal without prejudice; and (2) trial-level orders or judgments entered on remittitur must strictly conform to the appellate court’s decision, and any inconsistency may be corrected by resettlement or on appeal.
In foreclosure cases, a CPLR 3215(c) abandonment dismissal is without prejudice, but trial courts may not add relief not granted by the appellate mandate; any such overreach will be struck on appeal.