HSBC BANK USA v. MYERS (2019)

DECISION & ORDER

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiff's cross motion which were for leave to enter a default judgment against the defendants Daniel M. Myers and Daliah F. Myers and for an order of reference are denied.

The plaintiff commenced this action against the defendants Daniel M. Myers and Daliah F. Myers (hereinafter together the defendants), among others, to foreclose a mortgage.  The defendants failed to timely appear or answer the complaint.  More than two years after the defendants' default, the defendants moved, inter alia, pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against them as abandoned.  The plaintiff did not oppose the motion.  By order entered February 25, 2016, the Supreme Court denied the motion.  In April 2016, the defendants moved for leave to reargue that branch of their prior motion which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against them as abandoned.  The plaintiff cross-moved, inter alia, for leave to enter a default judgment against the defendants and for an order of reference.  In an order entered October 4, 2016, the court denied the defendants' motion for leave to reargue that branch of their prior motion which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against them and granted those branches of the plaintiff's cross motion which were for leave to enter a default judgment against the defendants and for an order of reference.

On the defendants' appeal from the order entered February 25, 2016, we are reversing the order insofar as appealed from, and granting that branch of the defendants' motion which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against them as abandoned (see HSBC Bank, USA, N.A. v. Myers, 168 A.D.3d 916, 2019 WL 288213 [Appellate Division Docket No. 2016–07073;  decided herewith] ).

Accordingly, the order entered October 4, 2016, must be reversed insofar as appealed from, and those branches of the plaintiff's cross motion which were for leave to enter a default judgment against the defendants and for an order of reference must be denied.

RIVERA, J.P., CHAMBERS, COHEN and BARROS, JJ., concur.