DEUTSCHE BANK NATIONAL TRUST COMPANY v. Annette Oliveras, etc., et al., Defendants. (2019)

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered July 25, 2018, which, inter alia, granted plaintiff's motion, and denied defendant Cruz's cross motion to dismiss the complaint pursuant to CPLR 3215(c), unanimously reversed, on the law, without costs, the motion denied, the cross motion granted, and the complaint dismissed.  The Clerk is directed to enter judgment accordingly.

The language of CPLR 3215(c), requiring dismissal of an action where judgment is not sought within a year of a default is not discretionary, but mandatory (HSBC Bank USA, N.A. v. Grella, 145 A.D.3d 669, 671, 44 N.Y.S.3d 56 [2d Dept. 2016]).  The statute excepts cases where “sufficient cause” is shown, but a plaintiff opposing dismissal is required “to proffer a reasonable excuse for the delay in timely moving for a default judgment and to demonstrate that the cause of action is potentially meritorious” (HSBC Bank, 145 A.D.3d at 671, 44 N.Y.S.3d 56;  see Selective Auto Ins. Company of N.J. v. Nesbitt, 161 A.D.3d 560, 78 N.Y.S.3d 97 [1st Dept. 2018]).  In this foreclosure action, plaintiff failed to explain why it did not move for a default judgment for over three years after satisfaction of the prior mortgage was recorded.  Plaintiff's assertion that it was in continued litigation regarding the prior mortgage until December 2017, is belied by documentary evidence that the other mortgagee acknowledged plaintiff's lien priority as of October 2015.  As such, it fails to constitute a reasonable excuse for delay (see Private Capital Group, LLC v. Hosseinipour, 170 A.D.3d 909, 911, 95 N.Y.S.3d 585 [2d Dept. 2019]).