AURORA LOAN SERVICES LLC v. MILLER (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Cenceria P. Edwards, J.), dated August 16, 2024.  The order, insofar as appealed from, sua sponte, directed dismissal of the complaint as abandoned pursuant to CPLR 3215(c) and, in effect, denied, as academic, those branches of the plaintiff's unopposed motion which were pursuant to CPLR 1018 and, in effect, CPLR 1021 and 3025(b) to substitute Harold Walcott for the defendant Kurtis Miller and amend the caption accordingly, for leave to enter a default judgment against all nonappearing and nonanswering defendants, and for an order of reference.

ORDERED that on the Court's own motion, the notice of appeal from so much of the order as, sua sponte, directed dismissal of the complaint as abandoned pursuant to CPLR 3215(c) is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c] );  and it is further,

ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, that branch of the plaintiff's unopposed motion which was pursuant to CPLR 1018 and, in effect, CPLR 1021 and 3025(b) to substitute Harold Walcott for the defendant Kurtis Miller and amend the caption accordingly is granted, and the matter is remitted to the Supreme Court, Kings County, for a determination on the merits of those branches of the plaintiff's motion which were for leave to enter a default judgment against all nonappearing and nonanswering defendants and for an order of reference.

In November 2010, the plaintiff commenced this action against the defendant Kurtis Miller, among others, to foreclose a mortgage on certain real property located in Brooklyn.  The plaintiff filed an affidavit of service with the Kings County Clerk's Office on December 30, 2010, setting forth that service had been effectuated on Miller pursuant to CPLR 308(2).  Miller failed to answer the complaint or otherwise appear in the action.  On January 13, 2012, the plaintiff filed a request for judicial intervention.  In January 2014, Miller sold the subject property to Harold Walcott.  In September 2022, the plaintiff moved, inter alia, pursuant to CPLR 1018 and, in effect, CPLR 1021 and 3025(b) to substitute Walcott as a defendant in place of Miller and amend the caption accordingly, for leave to enter a default judgment against all nonappearing and nonanswering defendants, and for an order of reference.  In an order dated August 16, 2024, the Supreme Court, among other things, sua sponte, directed dismissal of the complaint as abandoned pursuant to CPLR 3215(c) and, in effect, denied, as academic, those branches of the plaintiff's unopposed motion.  The plaintiff appeals.

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.”  “To avoid dismissal pursuant to CPLR 3215(c), it is not necessary for a plaintiff to actually obtain a default judgment within one year of the default.  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 Trust N.A. v. Nieves, 239 A.D.3d 1020,1021, 238 N.Y.S.3d 449 [alteration, citations, and internal quotation marks omitted];  see U.S. Bank N.A. v. Newson, 240 A.D.3d 821,822, 238 N.Y.S.3d 527).  The filing of a request for judicial intervention that seeks a residential mortgage foreclosure settlement conference as mandated by CPLR 3408 constitutes the taking of proceedings under CPLR 3215(c) (see U.S. Bank Trust N.A. v. Nieves, 239 A.D.3d at 1021, 238 N.Y.S.3d 449;  U.S. Bank N.A. v. DiGiovanni, 231 A.D.3d 1077,1078, 221 N.Y.S.3d 578).

Here, pursuant to CPLR 308(2), service upon Miller was complete 10 days after the filing of the affidavit of service, or on January 9, 2011.  Miller then had 30 days from that date, or until February 8, 2011, to appear or answer (see id. § 320[a] ).  The plaintiff filed a request for judicial intervention seeking a residential mortgage foreclosure settlement conference on January 13, 2012, less than one year after Miller's default.  Since the plaintiff demonstrated that it initiated proceedings for the entry of a judgment of foreclosure and sale within one year after Miller's default, it was not required to proffer a reasonable excuse or demonstrate a potentially meritorious cause of action (see id. § 3215[c];  Citimortgage, Inc. v. Zaibak, 188 A.D.3d 982, 983, 132 N.Y.S.3d 678).  Furthermore, “once the plaintiff established that it had initiated proceedings for the entry of a judgment within one year after the defendants' default, it was in compliance with CPLR 3215(c) and it was not required, under the plain language of that subdivision, to account for any additional periods of delay that may have occurred subsequent to the initial one-year period contemplated by CPLR 3215(c)” (Citimortgage, Inc. v. Zaibak, 188 A.D.3d at 983, 132 N.Y.S.3d 678;  see Deutsche Bank Natl. Trust Co. v. Lamarre, 211 A.D.3d 811, 812–813, 181 N.Y.S.3d 128).

Additionally, the Supreme Court should have granted that branch of the plaintiff's motion which was pursuant to CPLR 1018 and, in effect, CPLR 1021 and 3025(b) to substitute Walcott as a defendant in place of Miller and amend the caption accordingly (see LaSalle Bank N.A. v. Abedin, 236 A.D.3d 773, 776–777, 229 N.Y.S.3d 525).

The Supreme Court did not consider the merits of those branches of the plaintiff's motion which were for leave to enter a default judgment against all nonappearing and nonanswering defendants and for an order of reference.  Under the circumstances, we remit the matter to the Supreme Court, Kings County, for a determination on the merits of those branches of the plaintiff's motion (see U.S. Bank N.A. v. Jerriho–Cadogan, 224 A.D.3d 788, 790, 206 N.Y.S.3d 307;  Deutsche Bank Natl. Trust Co. v. Khalil, 208 A.D.3d 555, 558, 173 N.Y.S.3d 568).

CONNOLLY, J.P., CHAMBERS, FORD and MCCORMACK, JJ., concur.