U.S. Bank, N.A., etc., respondent, v. Barbara D. Rosenblatt, et al., appellants, et al., defendants.(Action No. 1) U.S. Bank, N.A., etc., respondent, v Clerk of Suffolk County District Court, defendant.(Action No. 2) (2026)

Argued—November 10, 2025

DECISION & ORDER

W/

In related actions to foreclose a mortgage, Barbara D. Rosenblatt and John P. Rosenblatt, defendants in Action No. 1, appeal from (1) an order of the Supreme Court, Suffolk County (Thomas F. Whelan, J.), dated July 24, 2023, and (2) an order and judgment of foreclosure and sale (one paper) of the same court entered August 2, 2023.  The order dated July 24, 2023, insofar as appealed from, denied the motion of the defendants Barbara D. Rosenblatt and John P. Rosenblatt pursuant to CPLR 3215(c) to dismiss the complaint in Action No. 1 insofar as asserted against them as abandoned, and granted those branches of the plaintiff's cross-motion which were to confirm a referee's report and for a judgment of foreclosure and sale.  The order and judgment of foreclosure and sale, insofar as appealed from, granted the same relief to the plaintiff, confirmed the referee's report, and directed the sale of the subject property.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the order and judgment of foreclosure and sale is reversed insofar as appealed from, on the law, the motion of the defendants Barbara D. Rosenblatt and John P. Rosenblatt pursuant to CPLR 3215(c) to dismiss the complaint in Action No. 1 insofar as asserted against them as abandoned is granted, those branches of the plaintiff's cross-motion which were to confirm the referee's report and for a judgment of foreclosure and sale are denied, and the order dated July 24, 2023, is modified accordingly;  and it is further,

ORDERED that one bill of costs is awarded to the appellants.

The appeal from the intermediate order must be dismissed, because the right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale in the action (see Matter of Aho, 39 N.Y.2d 241, 248).  The issues raised on the appeal from the order are brought up for review and are considered on the appeal from the order and judgment of foreclosure and sale (see CPLR 5501[a][1] ).

On or about October 7, 2009, the plaintiff commenced an action to foreclose a mortgage (hereinafter Action No. 1) against the defendants Barbara D. Rosenblatt and John P. Rosenblatt (hereinafter together the defendants), among others.  A process server stated in two affidavits that he served the defendants by affixing copies of the summons and complaint to their door on October 13, 2009, and by mailing copies of the summons and complaint to them at the same address on October 20, 2009.  The affidavits were filed with the Suffolk County Clerk on October 22, 2009.

On March 4, 2014, the plaintiff moved, inter alia, for leave to enter a default judgment against the defendants and for an order of reference.  In support, the plaintiff submitted, among other things, a Request for Judicial Intervention (hereinafter RJI) dated March 4, 2014.  In an order dated August 28, 2015, the Supreme Court, inter alia, granted those branches of the plaintiff's unopposed motion, declared the defendants to be in default, and appointed a referee to compute the amount due on the note.

On November 28, 2022, the defendants moved pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against them as abandoned.  The plaintiff cross-moved, among other things, to confirm the referee's report, to consolidate Action No. 1 with a second action it had commenced to foreclose the same mortgage (Action No. 2), and for a judgment of foreclosure and sale.

In an order dated July 24, 2023, the Supreme Court, inter alia, denied the defendants' motion and granted the plaintiff's cross-motion.  The defendants appeal from so much of the order as denied the defendants' motion and granted those branches of the plaintiff's cross-motion which were to confirm the referee's report and for a judgment of foreclosure and sale.

In an order and judgment of foreclosure and sale entered August 2, 2023, the court, among other things, granted the same relief to the plaintiff, confirmed the referee's report and directed the sale of the subject property.  The defendants appeal.

The Supreme Court erred in denying the defendants' motion pursuant to CPLR 3215(c) to dismiss the complaint in Action No. 1 insofar as asserted against them as abandoned.  Pursuant to CPLR 3215(c), “[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.”  It is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant to CPLR 3215(c) (see U.S. Bank N.A. v. Jerriho–Cadogan, 224 AD3d 788, 789;  Deutsche Bank Natl. Trust Co. v Khalil, 208 AD3d 555, 557–558).  “Rather, ‘as long as proceedings are being taken, and these proceedings manifest an intent not to abandon the case but to seek a judgment, the case should not be subject to dismissal’ ” (U.S. Bank N.A. v. Jerriho–Cadogan, 224 AD3d at 789, quoting Brown v. Rosedale Nurseries, 259 A.D.2d 256, 257).

Here, the defendants were served by the “affix and mail” method pursuant to CPLR 308(4).  The affidavits of service were filed on October 22, 2009, and service became complete 10 days later, on November 1, 2009 (see id.).  The defendants' answer was due 30 days later, on December 1, 2009 (see id. § 3012[c] ).  Thus, the plaintiff had until December 1, 2010, to take proceedings toward the entry of judgment in order to avoid dismissal pursuant to CPLR 3215(c).  The record indicates that the plaintiff took no action in this case until it moved for a default judgment and simultaneously filed the RJI on March 14, 2014, over three years after its time to “take proceedings” expired.  Although the time to “take proceedings” is tolled during settlement negotiations pursuant to CPLR 3408 (see Citibank, N.A. v. Kerszko, 203 AD3d 42, 49), here, the settlement negotiations did not begin until more than three years after the time to “take proceedings” had expired.  Contrary to the plaintiff's contention, the defendants' motion was not untimely, since it was made prior to the entry of the order and judgment of foreclosure and sale (see Federal Natl. Mtge. Assn. v Marty, 219 AD3d 581, 583;  CitiMortgage, Inc. v. Goldstein, 187 AD3d 841).

Accordingly, the Supreme Court should have granted the defendants' motion pursuant to CPLR 3215(c) to dismiss the complaint in Action No. 1 insofar as asserted against them as abandoned, and should have denied those branches of the plaintiff's cross-motion which were to confirm the referee's report and for a judgment of foreclosure and sale.

LASALLE, P.J., FORD, VOUTSINAS and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court