IXIS REAL ESTATE CAPITAL INC v. HERBST (2019)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

On July 8, 2009, the plaintiff commenced this action to foreclose a mortgage.  On or about July 23, 2009, the plaintiff filed proof of service of the summons and complaint upon the defendant Jackie Herbst pursuant to CPLR 308(4).  Herbst did not answer or appear in the action within the time provided by statute (see CPLR 308[4];  320[a];  3012[c] ).

Approximately seven years later, on December 28, 2016, the plaintiff filed a request for judicial intervention, and the parties participated in a court settlement conference on March 1, 2017.  On or about March 29, 2017, Herbst moved pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him on the ground that the plaintiff had failed to take proceedings to enter a default judgment against him within one year of his default.  In an order dated August 3, 2017, the Supreme Court granted the defendant's motion.  The plaintiff appeals.

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.”  “ ‘Sufficient cause’ requires a showing of a reasonable excuse for the delay in timely moving for leave to enter a default judgment, plus a demonstration that the cause of action is potentially meritorious” (HSBC Bank USA, N.A. v. Seidner, 159 A.D.3d 1035, 1035, 74 N.Y.S.3d 282).  “The determination of whether an excuse is reasonable in any given instance is committed to the sound discretion of the motion court” (Giglio v. NTIMP, Inc., 86 A.D.3d 301, 308, 926 N.Y.S.2d 546).

Here, we agree with the Supreme Court's determination to grant Herbst's motion to dismiss the complaint insofar as asserted against him.  Herbst demonstrated that the plaintiff failed to take any proceedings for entry of judgment within one year after he defaulted, and the plaintiff failed to demonstrate sufficient cause why the motion should be denied.  The plaintiff offered various excuses for its delay, but the excuses all involved events which transpired after the one-year statutory deadline had already passed, and were therefore legally insufficient to justify its failure to take proceedings for a default judgment within one year after Herbst's default (see Quadrozzi Concrete Corp. Individual Account Plan & Trust v. Javash Realty, LLC, 164 A.D.3d 1491, 85 N.Y.S.3d 217;  JBBNY, LLC v. Begum, 156 A.D.3d 769, 772, 67 N.Y.S.3d 284;  Rafiq v. Weston, 171 A.D.2d 783, 784, 567 N.Y.S.2d 503;  Monzon v. Sony Motor, 115 A.D.2d 714, 715, 496 N.Y.S.2d 529).

The plaintiff's remaining contentions are raised for the first time on appeal, and we do not consider them (see Matter of AutoOne Ins. Co. v. Negron, 148 A.D.3d 534, 534, 50 N.Y.S.3d 51;  Matter of Brodsky v. New York City Campaign Fin. Bd., 107 A.D.3d 544, 545, 971 N.Y.S.2d 265;  Antoine v. Borrocas, 293 A.D.2d 558, 740 N.Y.S.2d 223).

MASTRO, J.P., ROMAN, COHEN and CONNOLLY, JJ., concur.