HSBC USA v. Hugh Parris, appellant, et al., defendants. (2026)

Argued—January 22, 2026

DECISION & ORDER

G/

In an action to foreclose a mortgage, the defendant Hugh Parris appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Kings County (Mark Partnow, J.), dated November 13, 2018.  The order and judgment of foreclosure and sale, upon an order of the same court also dated November 13, 2018, granting the plaintiff's motion for a judgment of foreclosure and sale and denying the cross-motion of the defendant Hugh Parris to dismiss the complaint insofar as asserted against him, granted the same relief to the plaintiff and directed the sale of the subject property.

ORDERED that the order and judgment of foreclosure and sale is reversed, on the law and in the exercise of discretion, with costs, the plaintiff's motion for a judgment of foreclosure and sale is denied, the cross-motion of the defendant Hugh Parris to dismiss the complaint insofar as asserted against him is granted, the complaint is dismissed insofar as asserted against the defendant Hugh Parris, and the order is modified accordingly.

In this action to foreclose a mortgage, the plaintiff moved for an order of reference, which was granted.  The plaintiff did not move for a judgment of foreclosure and sale until more than one year after entry of the order of reference, in violation of Kings County Supreme Court Uniform Civil Term Rules, Part F. The defendant Hugh Parris (hereinafter the defendant) cross-moved to dismiss the complaint insofar as asserted against him pursuant to Kings County Supreme Court Uniform Civil Term Rules, Part F, due to the plaintiff's failure to timely file its motion for a judgment of foreclosure and sale.  In an order dated November 13, 2018, the Supreme Court granted the plaintiff's motion for a judgment of foreclosure and sale and denied the defendant's cross-motion.  In an order and judgment of foreclosure and sale also dated November 13, 2018, the court, upon the order, granted the same relief to the plaintiff and directed the sale of the subject property.  The defendant appeals.

Kings County Supreme Court Uniform Civil Term Rules, Part F, provides that, “[w]ithin one year after the signing and entry of an Order of Reference, an application for a Judgment of Foreclosure and Sale must be made.  Such period of time will be suspended by the filing a Forbearance or Settlement Agreement with the clerk of the court.  Failure to comply will result in an automatic dismissal of the action” (Kings County Supreme Court Uniform Civil Term Rules, Part F, Rule 7).  The rules thus require a plaintiff in a foreclosure action to file a motion for a judgment of foreclosure and sale within one year of entry of the order of reference (see Wells Fargo Bank N.A. v. Kahan, 239 AD3d 691, 693;  Bank of N.Y. v. Levy, 231 AD3d 917, 920;  HSBC Bank USA, N.A. v. Baptiste, 218 AD3d 448, 449).  Where the plaintiff offers an excuse for its failure to comply with that requirement, the determination of whether the excuse is reasonable is committed to the sound discretion of the court (see Wells Fargo Bank N.A. v. Kahan, 239 AD3d at 693;  Bank of N.Y. v. Levy, 231 AD3d at 920;  HSBC Bank USA, N.A. v. Baptiste, 218 AD3d at 449).

Here, the Supreme Court improvidently exercised its discretion in accepting the plaintiff's excuse for its failure to file a motion for a judgment of foreclosure and sale within one year of entry of the order of reference.  One of the plaintiff's excuses, offered in opposition to the defendant's cross-motion, was that some “delay was caused in the preparation and collection of all the requisite documents and proofs for the [referee's] Oath and Report” as to the amount due.  However, in the absence of any detail as to what documents or information resulted in the delay, why a delay resulted here relative to the typical case, or just how long the plaintiff was delayed, the plaintiff's excuse cannot be regarded as reasonable.

Further, the plaintiff claimed that delays were also caused when the plaintiff determined that “the notice of pendency had lapsed and an updated title report was required for review.”  However, as the plaintiff acknowledged, the original notice of pendency was filed on July 2, 2009, and a renewal notice of pendency was filed on July 9, 2015.  The order of reference in the instant case was not entered until August 24, 2016.  Therefore, at the time of the entry of the order of reference, the renewal notice of pendency had been obtained more than a year prior, and therefore, any delay in obtaining said renewal notice of pendency was not a cause for the delay in moving for a judgment of foreclosure and sale.

Therefore, the plaintiff failed to provide any reasonable excuse for its delay in moving for a judgment of foreclosure and sale until December 2017, well over one year after entry of the order of reference.  Under the circumstances, the Supreme Court should have denied the plaintiff's motion and granted the defendant's cross-motion to dismiss the complaint insofar as asserted against him pursuant to Kings County Supreme Court Uniform Civil Term Rules, Part F (see Wells Fargo Bank N.A. v. Kahan, 239 AD3d at 693).

In light of our determination, we need not address the defendant's remaining contentions.

IANNACCI, J.P., BRATHWAITE NELSON, WOOTEN and TAYLOR, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court