WELLS FARGO BANK PLAINTIFF APPELLANT v. AND HOME HEADQUARTERS INC DEFENDANT (2015)

Supreme Court, Appellate Division, Fourth Department.

WELLS FARGO BANK, N.A., PLAINTIFF–APPELLANT, v. LUKE BUFFENMYER, DEFENDANT–RESPONDENT, AND HOME HEADQUARTERS, INC., DEFENDANT.

CA 15–01024

Decided: December 31, 2015

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND DEJOSEPH, JJ.

REED SMITH LLP, NEW YORK CITY (JOSEPH B. TEIG OF COUNSEL), FOR PLAINTIFF–APPELLANT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In seeking to restore this foreclosure action to Supreme Court's calendar after it had been dismissed, plaintiff was required to “demonstrate a potentially meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendants” (Vaream v. Corines, 78 AD3d 933, 933). We agree with plaintiff that the order of reference and judgment of foreclosure and sale are sufficient to establish the merit of the action (see GMAC Mtge., LLC v. Alfred, 2015 N.Y. Slip Op 51621[U], *1 [Sup Ct, Albany County, 2015] ). Plaintiff failed, however, to establish a reasonable excuse for its delay (see Okun v. Tanners, 11 NY3d 762, 763; Sang Seok Na v. Greyhound Lines, Inc., 88 AD3d 980, 981), lack of intent to abandon the action, or lack of prejudice to defendants (see Sierra R. v. Jamaica Hosp. Med. Ctr., 101 AD3d 701, 703).

Frances E. Cafarell

Clerk of the Court

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