DEUTSCHE BANK NATIONAL TRUST COMPANY v. SINGH (2025)

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered June 29, 2023.  The order denied the plaintiff's motion pursuant to CPLR 5015 to vacate an order of the same court (Marguerite A. Grays, J.) entered May 8, 2017, confirming a report of a Court Attorney Referee and, sua sponte, directing dismissal of the complaint without prejudice, to restore the action to the calendar, and to reinstate the notice of pendency.

ORDERED that the order entered June 29, 2023, is affirmed, with costs.

The plaintiff commenced this residential mortgage foreclosure action in 2015 against, among others, the defendant Keshwar Singh (hereinafter the defendant).  In an order entered May 8, 2017 (hereinafter the dismissal order), the Supreme Court confirmed a Court Attorney Referee's report recommending that the matter be dismissed based upon the plaintiff's failure to produce a bank representative at a residential foreclosure settlement conference conducted on March 30, 2017 (hereinafter the 2017 conference), and, sua sponte, directed dismissal of the complaint without prejudice.

In September 2018, the plaintiff moved, inter alia, to vacate the dismissal order (hereinafter the 2018 motion).  The Supreme Court, in effect, denied the 2018 motion after the parties failed to appear on the return date.  More than four years later, in November 2022, the plaintiff again moved pursuant to CPLR 5015 to vacate the dismissal order, to restore the action to the calendar, and to reinstate the notice of pendency (hereinafter the 2022 motion), contending that dismissal of the action had not been proper and that the default at the 2017 conference was due to law office failure.  In an order entered June 29, 2023, the court denied the 2022 motion on the ground that directing dismissal of the complaint was proper pursuant to 22 NYCRR 202.27 and that the plaintiff's excuse was not reasonable.  The plaintiff appeals.

Upon motion of any interested person, the Supreme Court may relieve a party of its own order where the court lacked a statutory basis for that order or on the ground of excusable default (see CPLR 5015[a];  HSBC Bank USA, N.A. v. Trabolsi, 226 A.D.3d 985, 987, 211 N.Y.S.3d 114;  Bank of N.Y. v. Harper, 176 A.D.3d 907, 909, 110 N.Y.S.3d 736).  A party seeking to vacate an order entered upon a failure to appear at a scheduled conference “must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action” (Beneficial Homeowner Serv. Corp. v. Horan, 230 A.D.3d 1210, 1211, 216 N.Y.S.3d 719;  see Davis v. 574 Lafa Corp., 206 A.D.3d 613, 615, 170 N.Y.S.3d 126).

Pursuant to 22 NYCRR 202.27(b), “if all parties do not appear and proceed at any scheduled call of a calendar or at any conference, the court may note the default on the record, and, where the defendant appears but the plaintiff does not, dismiss the action” (Beneficial Homeowner Serv. Corp. v. Horan, 230 A.D.3d at 1210, 216 N.Y.S.3d 719).  Although the plaintiff alleged that it had appeared by counsel at the 2017 conference, it failed to submit any evidence to support this claim.  Accordingly, under the circumstances of this case, the Supreme Court providently exercised its discretion in determining that directing dismissal of the complaint was warranted pursuant to 22 NYCRR 202.27 when the plaintiff failed to appear at the 2017 conference (see Rivera v. Waterview Towers, Inc., 235 A.D.3d 921, 925–926, 228 N.Y.S.3d 275;  Johnson v. Aguwa, 176 A.D.3d 1039, 1040, 108 N.Y.S.3d 895).

The Supreme Court also providently exercised its discretion in finding that the plaintiff failed to proffer a reasonable excuse for its failure to proceed.  “Law office failure may qualify as a reasonable excuse for a party's default provided the claim of such failure is supported by a detailed and credible explanation of the default” (Ferreira v. Singh, 176 A.D.3d 782, 784, 110 N.Y.S.3d 40).  Here, the plaintiff's excuse that the default was the result of the plaintiff substituting counsel prior to the 2017 conference and outgoing counsel not communicating the court's requirements to incoming counsel was conclusory and speculative (see OneWest Bank, FSB v. Singer, 153 A.D.3d 714, 716, 59 N.Y.S.3d 480).  Moreover, the plaintiff offered no explanation for its nearly 11/212-year delay in moving to vacate the default after the court directed dismissal of the complaint, for its abandonment of the 2018 motion, and for its additional delay of more than four years to file the 2022 motion (see Beneficial Homeowner Serv. Corp. v. Horan, 230 A.D.3d at 1211–1212, 216 N.Y.S.3d 719).  “In light of the lack of a reasonable excuse, it is unnecessary to determine whether the plaintiff demonstrated the existence of a potentially meritorious cause of action” (Gutierrez v. Plonski, 219 A.D.3d 807, 809, 195 N.Y.S.3d 251;  see Rivera v. Waterview Towers, Inc., 235 A.D.3d 921, 228 N.Y.S.3d 275).  Accordingly, the court properly denied the plaintiff's motion pursuant to CPLR 5015 to vacate the dismissal order, to restore the action to the calendar, and to reinstate the notice of pendency.

The parties' remaining contentions need not be reached in light of our determination.

DUFFY, J.P., MILLER, WARHIT and LOVE, JJ., concur.