DEUTSCHE BANK NATIONAL TRUST COMPANY v. PORTER (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Nassau County (David P. Sullivan, J.), dated January 20, 2023.  The order denied the plaintiff's unopposed motion, in effect, pursuant to CPLR 2221(a) to vacate an order of the same court (Kathryn D. Hopkins, Ct. Atty. Ref.) dated September 10, 2012, sua sponte, directing dismissal of the complaint as abandoned pursuant to CPLR 3215(c), and to restore the action to the active calendar.

ORDERED that the order dated January 20, 2023, is reversed, on the law, without costs or disbursements, and the plaintiff's unopposed motion, in effect, pursuant to CPLR 2221(a) to vacate the order dated September 10, 2012, and to restore the action to the active calendar is granted.

In October 2009, the plaintiff commenced this action to foreclose a mortgage against, among others, the defendant Donna Porter (hereinafter the defendant).  After the defendant failed to appear or answer the complaint, the plaintiff moved for an order of reference.  In an order entered August 25, 2010, the Supreme Court denied the motion.  The plaintiff subsequently moved for the same relief, which was denied in an order entered March 11, 2011.  In an order dated September 10, 2012, the court, sua sponte, directed dismissal of the complaint as abandoned pursuant to CPLR 3215(c) (hereinafter the dismissal order).  In September 2022, the plaintiff moved, in effect, pursuant to CPLR 2221(a) to vacate the dismissal order and to restore the action to the active calendar.  The motion was unopposed.  In an order dated January 20, 2023, the court denied the motion.  The plaintiff appeals.

The Supreme Court erred in denying the plaintiff's motion, in effect, pursuant to CPLR 2221(a) to vacate the dismissal order and to restore the action to the active calendar.  CPLR 3215(c) provides that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned ․ unless sufficient cause is shown why the complaint should not be dismissed” (see Deutsche Bank Natl. Trust Co. v. Campbell, 219 A.D.3d 701, 703, 195 N.Y.S.3d 75;  Bank of Am., N.A. v. Rice, 155 A.D.3d 593, 593, 63 N.Y.S.3d 486).  A plaintiff has not abandoned an action if, within one year after the defendant's default, the plaintiff has manifested an intent not to abandon the action, but to take steps to seek a judgment (see MidFirst Bank v. Morris, 221 A.D.3d 889, 890, 201 N.Y.S.3d 421;  Citimortgage, Inc. v. Kimmerling, 220 A.D.3d 838, 840, 199 N.Y.S.3d 96).  Here, the plaintiff moved for an order of reference within the one-year statutory period.  The fact that the court denied the motion is beside the point, as the mere presentation of the motion established the plaintiff's intent to proceed toward the entry of judgment and not to abandon the action (see Wells Fargo Bank, N.A. v. Wint, 235 A.D.3d 701, 703, 226 N.Y.S.3d 576;  MidFirst Bank v. Morris, 221 A.D.3d at 890, 201 N.Y.S.3d 421;  Deutsche Bank Natl. Trust Co. v. Attard, 197 A.D.3d 619, 621, 153 N.Y.S.3d 92).  Because the plaintiff did not fail to take timely proceedings for the entry of a judgment against the defendant within the meaning of CPLR 3215(c), the plaintiff was not required to demonstrate an excuse for its purported delay in moving to vacate the dismissal order (see Wells Fargo Bank, N.A. v. Wint, 235 A.D.3d at 703, 226 N.Y.S.3d 576;  U.S. Bank N.A. v. Cadoo, 197 A.D.3d 586, 588, 153 N.Y.S.3d 68).  Moreover, the plaintiff's motion, in effect, pursuant to CPLR 2221(a) to vacate the dismissal order and to restore the action to the active calendar was not subject to any specific time limitation (see Wells Fargo Bank, N.A. v. Wint, 235 A.D.3d at 703, 226 N.Y.S.3d 576;  Deutsche Bank Natl. Trust Co. v. Campbell, 219 A.D.3d at 702, 195 N.Y.S.3d 75).

Since dismissal of the action under CPLR 3215(c) was unwarranted, the Supreme Court should have granted the plaintiff's unopposed motion, in effect, pursuant to CPLR 2221(a) to vacate the dismissal order and to restore the action to the active calendar (see Wells Fargo Bank, N.A. v. Lopez, 214 A.D.3d 844, 845, 185 N.Y.S.3d 278;  U.S. Bank, N.A. v. Stiene, 203 A.D.3d 985, 987, 165 N.Y.S.3d 580;  US Bank, N.A. v. Picone, 170 A.D.3d 1070, 1072, 96 N.Y.S.3d 671).

BARROS, J.P., WARHIT, TAYLOR and GOLIA, JJ., concur.