HSBC MORTGAGE CORPORATION USA v. GEWIRTZ (2025)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Edward N. Gewirtz appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated February 24, 2023.  The order, insofar as appealed from, granted those branches of the plaintiff's motion which were to vacate a conditional order of dismissal of the same court dated December 10, 2013, and to restore the action to the active calendar.

ORDERED that the order dated February 24, 2023, is affirmed insofar as appealed from, with costs.

In January 2009, the plaintiff commenced this action to foreclose a mortgage, alleging that the defendant Edward N. Gewirtz (hereinafter the defendant) defaulted on his monthly payments due under the subject note and mortgage.  The defendant answered the complaint.  By order dated December 10, 2013 (hereinafter the conditional order of dismissal), the Supreme Court directed dismissal of the complaint pursuant to CPLR 3216 unless the plaintiff filed a note of issue or otherwise proceeded by motion for the entry of judgment within 90 days.  In May 2014, the conditional order of dismissal was filed.  On September 14, 2017, the mortgage was assigned to U.S. Bank Trust, N.A. In January 2023, the plaintiff moved, inter alia, to vacate the conditional order of dismissal and to restore the action to the active calendar.  By order dated February 24, 2023, the court, among other things, granted those branches of the plaintiff's motion.  The defendant appeals.

It is evident from the record that the action was ministerially dismissed without a motion or notice to the plaintiff, and there was no order of the Supreme Court dismissing the action (see Cadichon v. Facelle, 18 N.Y.3d 230, 236, 938 N.Y.S.2d 232, 961 N.E.2d 623;  Onewest Bank, FSB v. N & R Family Trust, 200 A.D.3d 900, 901–902, 155 N.Y.S.3d 362 ).  Under these circumstances, the action was properly restored to the active calendar (see OneWest Bank, FSB v. Segal, 221 A.D.3d 1020, 1022–1023, 202 N.Y.S.3d 144;  Onewest Bank, FSB v. N & R Family Trust, 200 A.D.3d 900, 155 N.Y.S.3d 362;  HSBC Bank USA, N.A. v. Garnes, 186 A.D.3d 1620, 1620–1621, 129 N.Y.S.3d 819;  U.S. Bank N.A. v. Spence, 175 A.D.3d 1346, 1347–1348, 105 N.Y.S.3d 882).  Further, the post-commencement transfer of the note and mortgage did not divest the plaintiff of its standing (see CPLR 1018;  JPMorgan Chase Bank, N.A. v. Esparza, 213 A.D.3d 655, 657, 183 N.Y.S.3d 491;  GRP Loan, LLC v. Taylor, 95 A.D.3d 1172, 1174, 945 N.Y.S.2d 336).

The defendant's remaining contentions are either improperly raised for the first time on appeal or without merit.

IANNACCI, J.P., GENOVESI, WAN and LANDICINO, JJ., concur.