GREEN TREE SERVICING LLC v. 1812 LLC (2025)

Order, Supreme Court, Bronx County (Naita A. Semaj, J.), entered on or about March 26, 2025, which denied plaintiff's motion to vacate an order of dismissal and restore the matter to the calendar, unanimously reversed, on the facts, without costs, the motion granted, and the complaint reinstated.

In this residential foreclosure action, Supreme Court improvidently exercised its discretion in denying plaintiff's motion on the ground that plaintiff failed to proffer a reasonable excuse for its failure to appear at a status conference in June 2018, which resulted in the dismissal of the action.  Plaintiff gave both a reasonable excuse for its default and a potentially meritorious claim (Pena v. Pinnacle Assoc. II N.Y. LLC, 178 A.D.3d 407, 407, 111 N.Y.S.3d 175 [1st Dept. 2019]).  Plaintiff's counsel presented a substantiated excuse of law office failure for not attending the June 11, 2018 conference.  The failure to appear was due to confusion among counsel, former counsel believed that it did not need to attend as it had executed a consent to change attorney, and incoming counsel failed to E-track the case to receive electronic notifications.  This was also the first conference missed by plaintiff, and the record reveals no other compelling evidence of willful or contumacious conduct on counsel's part.

Moreover, it is undisputed that plaintiff demonstrated the existence of a meritorious action by producing the note, mortgage, and evidence of defendant Emma Rivera's default.  Under these circumstances, plaintiff's authority for the proposition that it had a reasonable excuse for the default is persuasive (see Navarro v. Joy Constr. Corp., 209 A.D.3d 440, 174 N.Y.S.3d 829 [1st Dept. 2022];  Matter of Rivera v. New York City Dept. of Sanitation, 142 A.D.3d 463, 36 N.Y.S.3d 464 [1st Dept. 2016]).