DEUTSCHE BANK NATIONAL TRUST COMPANY v. Betsie Marie Corujo Martinez et al., Defendants. (2026)

Order, Supreme Court, New York County (Francis A. Kahn, III, J.), entered January 22, 2025, which denied plaintiff's motion to confirm a referee's report and for a judgment of foreclosure and sale, and granted defendant Roberto Sebelen Medina's cross-motion to dismiss the complaint as abandoned under CPLR 3215(c), unanimously affirmed, without costs.

Contrary to plaintiff's argument, defendant Medina's failure to move to vacate his default in answering the foreclosure complaint or appearing in this action did not operate as a waiver of his right to seek dismissal of the complaint pursuant to CPLR 3215(c) (see MTGLQ Invs., L.P. v. Shay, 190 A.D.3d 527, 529, 140 N.Y.S.3d 496 [1st Dept. 2021], lv denied 37 N.Y.3d 908, 2021 WL 4164320 [2021];  Sports Legends, Inc. v. Carberry, 38 A.D.3d 470, 470, 833 N.Y.S.2d 49 [1st Dept. 2007]).

The court properly dismissed the complaint as abandoned (CPLR 3215[c]).  Plaintiff failed to move for entry of a default judgment until April 13, 2023, more than one year after Medina's default (see Wells Fargo Bank, N.A. v. Gwebu, 226 A.D.3d 578, 209 N.Y.S.3d 377 [1st Dept. 2024]).  Medina's participation in settlement conferences did not constitute a formal or an informal appearance because he “did not actively litigate the action before ․ Supreme Court or participate in the action on the merits” (Wells Fargo Bank, N.A. v. Martinez, 181 A.D.3d 470, 471, 121 N.Y.S.3d 248 [1st Dept. 2020] [internal quotation marks omitted]).  Plaintiff failed to establish sufficient cause for why the complaint should not be dismissed, and dismissal was warranted even in the absence of prejudice to Medina (see U.S. Bank N.A. v. Dickerson, 223 A.D.3d 930, 932, 205 N.Y.S.3d 100 [2d Dept. 2024]).