Judges

Attorneys and Parties

Brief Summary

Background

U.S. Bank commenced Action No. 1 to foreclose a mortgage on or about October 7, 2009. The defendants were served by the 'affix and mail' method under CPLR 308(4) [service by affixing the summons to the door and mailing it], with affidavits of service filed on October 22, 2009. Service became complete 10 days later, on November 1, 2009, and under CPLR 3012(c) [answer due 30 days after service is complete in this context], the defendants' answer was due on December 1, 2009. The plaintiff did not seek a default judgment within the next year. Instead, it waited until March 4, 2014, when it moved for leave to enter a default judgment and for an order of reference, while also filing an RJI. The Supreme Court later granted that unopposed motion in 2015 and appointed a referee to compute the amount due. In 2022, before entry of a final foreclosure judgment, the defendants moved to dismiss the complaint as abandoned under CPLR 3215(c). The plaintiff opposed and cross-moved to confirm the referee's report, consolidate with a second foreclosure action, and obtain a judgment of foreclosure and sale.

Lower Court Decision

The Supreme Court, Suffolk County, denied the defendants' motion to dismiss under CPLR 3215(c) and granted the plaintiff's cross-motion to confirm the referee's report and for a judgment of foreclosure and sale. It then entered an order and judgment of foreclosure and sale directing sale of the property.

Appellate Division Reversal

The Appellate Division dismissed the appeal from the intermediate order because the right to directly appeal that order terminated upon entry of the order and judgment of foreclosure and sale, with the issues reviewable on the appeal from the final paper under CPLR 5501(a)(1) [an appeal from a final judgment brings up for review prior nonfinal orders that necessarily affect the judgment]. On the merits, the court held that the Supreme Court should have granted the defendants' CPLR 3215(c) motion. The one-year period to take proceedings began after the defendants defaulted on December 1, 2009, and expired on December 1, 2010. The plaintiff took no qualifying action until March 2014, more than three years too late. Because the foreclosure settlement toll recognized under CPLR 3408 did not begin until after the deadline had already lapsed, it could not revive the claim. The defendants' motion was also timely because it was made before entry of the foreclosure judgment. The court therefore reversed the order and judgment insofar as appealed from, granted dismissal as abandoned, denied confirmation of the referee's report and denial of foreclosure relief, and awarded one bill of costs to the defendants.

Legal Significance

This decision reinforces that in New York foreclosure cases, a lender must timely take concrete proceedings toward entry of judgment after a borrower's default to avoid mandatory dismissal under CPLR 3215(c). A later motion for default judgment and order of reference can satisfy the rule only if made within the statutory period. The case also clarifies timing when service is made by affix-and-mail: service becomes complete 10 days after filing proof of service, and the answer period then runs from that completion date. In addition, tolling during CPLR 3408 settlement activity cannot rescue a claim when the one-year CPLR 3215(c) period already expired before settlement conferences began.