Deutsche Bank National Trust Company v. Porter
Attorneys and Parties
Brief Summary
Mortgage foreclosure; whether a case is abandoned under New York Civil Practice Law and Rules (CPLR) 3215(c) when the plaintiff timely moves toward default judgment within one year of default; timing of a CPLR 2221(a) motion to vacate a sua sponte dismissal.
Denied the plaintiff’s unopposed motion to vacate a 2012 sua sponte CPLR 3215(c) abandonment dismissal and to restore the case to the active calendar.
The Appellate Division reversed the denial, vacated the 2012 abandonment dismissal, and restored the foreclosure action to the active calendar.
Under CPLR 3215(c) [provides that if the plaintiff fails to take proceedings for entry of judgment within one year after the default, the court shall dismiss the complaint as abandoned unless sufficient cause is shown], a plaintiff does not abandon the case if it manifests intent to proceed within one year; Deutsche Bank did so by moving for an order of reference within the one-year period, and the denial of that motion does not negate the manifested intent. The plaintiff therefore was not required to show an excuse for delay in moving to vacate. Further, a motion in effect under CPLR 2221(a) [governing motions to renew, reargue, or otherwise affect prior orders] to vacate a sua sponte CPLR 3215(c) dismissal is not subject to a specific time limitation.
Background
Plaintiff commenced a mortgage foreclosure action in October 2009 against Donna Porter, among others. Porter defaulted by failing to appear or answer. Plaintiff moved for an order of reference within one year of default; the motion was denied on August 25, 2010, and a subsequent, similar motion was denied on March 11, 2011. On September 10, 2012, the court sua sponte dismissed the complaint as abandoned under CPLR 3215(c). In September 2022, plaintiff moved, in effect, under CPLR 2221(a) to vacate the 2012 dismissal and restore the case; the motion was unopposed. On January 20, 2023, the Supreme Court denied the motion, and the plaintiff appealed.
Lower Court Decision
The Supreme Court, Nassau County, had earlier sua sponte dismissed the action as abandoned under CPLR 3215(c) (September 10, 2012), and later denied plaintiff’s unopposed motion to vacate that dismissal and restore the action (January 20, 2023).
Appellate Division Reversal
Reversed on the law. The Appellate Division held that plaintiff’s timely motion for an order of reference within one year of the default evidenced intent to proceed, precluding abandonment under CPLR 3215(c). Consequently, the CPLR 3215(c) dismissal was unwarranted, plaintiff was not required to show an excuse for any delay in moving to vacate, and the CPLR 2221(a) motion was not time-barred. The court granted the unopposed motion, vacated the 2012 dismissal, and restored the action to the active calendar.
Legal Significance
Confirms that presenting a timely motion toward default judgment—such as an order of reference motion—within one year of a defendant’s default satisfies CPLR 3215(c)’s requirement and defeats abandonment, even if that motion is denied. Also clarifies that a motion in effect under CPLR 2221(a) to vacate a sua sponte 3215(c) dismissal is not subject to a specific time limit and does not require an excuse for delay when abandonment did not occur.
In foreclosure actions, a timely motion for an order of reference within one year of default preserves the case from CPLR 3215(c) abandonment, and a later motion under CPLR 2221(a) to vacate a sua sponte abandonment dismissal may be granted without a showing of excusable delay.