NEWREZ LLC v. SHANNON (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Peretz Feder and Pesel Feder appeal from an order of the Supreme Court, Kings County (Larry D. Martin, J.), dated December 21, 2023.  The order denied those defendants' cross-motion pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against them as abandoned.

ORDERED that the order is affirmed, with costs.

In May 2005, Everhome Mortgage Company (hereinafter Everhome) commenced this action to foreclose a mortgage encumbering certain real property located in Kings County.  The defendants Peretz Feder and Pesel Feder (hereinafter the Feder defendants) failed to timely answer the complaint.

In November 2006, Everhome moved for an order of reference and for leave to enter a default judgment against all defendants.  In an order dated February 20, 2007, the Supreme Court granted Everhome's motion.

In November 2013, Everhome moved, inter alia, for a judgment of foreclosure and sale.  The Feder defendants appeared and opposed the motion.  In their opposition papers, they asserted that they had not been served with the summons and complaint and, therefore, that the complaint should be dismissed insofar as asserted against them (see Everhome Mtge. Co. v. Berger, 151 A.D.3d 811, 812, 56 N.Y.S.3d 548).  The Supreme Court, upon a decision of a special referee, denied Everhome's motion and directed dismissal of the action (see id.).  Everhome appealed, and this Court reversed and remitted the matter to the Supreme Court, Kings County, for a new determination of the merits of Everhome's motion (see id. at 812–813, 56 N.Y.S.3d 548).

In August 2022, Everhome moved, among other things, to restore the action to the calendar and to appoint a substitute referee.  The Feder defendants opposed Everhome's motion, but did not seek dismissal of the action insofar as asserted against them pursuant to CPLR 3215(c).  In an order dated March 22, 2023, the Supreme Court granted Everhome's motion.

Thereafter, in August 2023, the plaintiff, NewRez, LLC, the successor in interest to Everhome, moved for a judgment of a foreclosure and sale.  In October 2023, the Feder defendants cross-moved pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against them as abandoned, on the ground that Everhome failed to take proceedings to obtain a default judgment against them within one year of their default.  In an order dated December 21, 2023, the Supreme Court denied the Feder defendants' cross-motion.  The Feder defendants appeal.

“Pursuant to CPLR 3215(c), an action is deemed abandoned where a default has occurred and a plaintiff has failed to take proceedings for the entry of a judgment within one year thereafter” (Deutsche Bank Natl. Trust Co. v Garriques, 235 A.D.3d 620, 621, 227 N.Y.S.3d 622 [internal quotation marks omitted];  see Christiana Trust v. Victor, 224 A.D.3d 869, 872, 207 N.Y.S.3d 85).  However, “[a] defendant may waive the right to seek dismissal pursuant to CPLR 3215(c) by serving an answer or taking any other steps which may be viewed as a formal or informal appearance” (Deutsche Bank Trust Co. Ams. v. Agostinelli, 230 A.D.3d 472, 474, 216 N.Y.S.3d 650 [internal quotation marks omitted];  see Myers v. Slutsky, 139 A.D.2d 709, 710, 527 N.Y.S.2d 464).  Here, the Feder defendants waived their right to seek dismissal of the complaint insofar as asserted against them pursuant to CPLR 3215(c) by opposing Everhome's prior motions without seeking to dismiss the complaint pursuant to CPLR 3215(c) (see Bank of N.Y. Mellon v. Gaston, 241 A.D.3d 1242, 1247, 242 N.Y.S.3d 281;  HSBC Bank USA, N.A. v. Ranasinghe, 199 A.D.3d 993, 994, 154 N.Y.S.3d 787).

The parties' remaining contentions have been rendered academic in light of our determination.

CONNOLLY, J.P., CHRISTOPHER, WAN and QUIRK, JJ., concur.