Deutsche Bank National Trust Company, etc., respondent, v. Horace J. Patrick, appellant, et al., defendants.

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Supreme Court, Appellate Division, Second Department, New York.

Deutsche Bank National Trust Company, etc., respondent, v. Horace J. Patrick, appellant, et al., defendants.

2016–00461 (Index No. 30795/08)

Decided: June 19, 2019

CHERYL E. CHAMBERS, J.P. SHERI S. ROMAN BETSY BARROS LINDA CHRISTOPHER, JJ. Berg & David, PLLC, Brooklyn, N.Y. (Shane Wax, David Berg, and Abraham David of counsel), for appellant.

Argued—February 14, 2019

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Horace J. Patrick appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated September 18, 2015.  The order granted the plaintiff's motion to vacate an order of the same court dated September 19, 2013, which, sua sponte, directed dismissal of the complaint as abandoned pursuant to CPLR 3215(c).

ORDERED that the order dated September 18, 2015, is affirmed, with costs.

On November 10, 2008, the plaintiff lender commenced this action to foreclose a mortgage given by the defendant Horace J. Patrick on certain real property located in Brooklyn.  Patrick never answered the complaint.  In or about March 2009, the plaintiff moved for an order of reference, which was issued by the Supreme Court, Kings County (Kathy J. King, J.), on October 15, 2010.  However, in an order dated September 19, 2013 (hereinafter the dismissal order), the Supreme Court, Kings County (Lawrence Knipel, J.), sua sponte, directed dismissal of the complaint as abandoned pursuant to CPLR 3215(c), stating that “the plaintiff has failed to proceed to entry of judgment within one year of default.”

The plaintiff thereafter moved to vacate the dismissal order, and Patrick—who, in the interim, had sold the subject property to a third party—opposed the motion.  The Supreme Court granted the plaintiff's motion, and Patrick appeals.

Contrary to Patrick's contention, the Supreme Court providently exercised its discretion in granting the plaintiff's motion to vacate the dismissal order (see Bank of Am., N.A. v. Lucido, 163 AD3d 614;  Washington Mut. Bank, FA v. Milford–Jean–Gille, 153 AD3d 754;  Citimortgage, Inc. v. Lottridge, 143 AD3d 1093;  BAC Home Loans Servicing, LP v. Maestri, 134 AD3d 1593;  HSBC Bank USA, N.A. v. Alexander, 124 AD3d 838).

CHAMBERS, J.P., ROMAN, BARROS and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court