Deutsche Bank Nat'l Trust Co. v. Lalicata

208 A.D.3d 854

175 N.Y.S.3d 69

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., appellant,

v.Mario LALICATA, respondent, et al., defendants.

2019–11550

Index No. 704113/13

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

Argued—June 13, 2022

August 31, 2022

McCabe, Weisberg & Conway, LLC, Melville, NY (Kenneth Britt of counsel), for appellant.

New York Legal Assistance Group, New York, NY (Beth E. Goldman of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., SHERI S. ROMAN, WILLIAM G. FORD, LILLIAN WAN, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Timothy J. Dufficy, J.), entered March 26, 2019. The order denied the plaintiff's motion pursuant to CPLR 5015(a)(1) to vacate an order of the same court (Martin J. Schulman, J.) dated October 25, 2017, which, among other things, sua sponte, directed dismissal of the complaint without prejudice and, upon vacatur of the order dated October 25, 2017, for a judgment of foreclosure and sale.

ORDERED that the order entered March 26, 2019, is affirmed, with costs.

In 2013, the plaintiff commenced this action to foreclose a mortgage on certain real property owned by the defendant Mario Lalicata (hereinafter the defendant). In May 2017, the Supreme Court granted the plaintiff's motion, inter alia, for summary judgment on the complaint as to the defendant, among others, for leave to enter a default judgment against nonappearing and nonanswering defendants, and for an order of reference. A status conference order dated August 9, 2017 (hereinafter the August 2017 order) directed the plaintiff to move for a judgment of foreclosure and sale by October 25, 2017, the date of the final status conference, and warned that "failure to comply with the terms of this order may result in the dismissal of this action without prejudice." The plaintiff failed to follow the court's directive, and in an order dated October 25, 2017 (hereinafter the October 2017 order of dismissal), the court, among other things, directed dismissal of the complaint without prejudice, specifically citing the plaintiff's failure to comply with the terms of the August 2017 order.

In December 2018, the plaintiff moved pursuant to CPLR 5015(a)(1) to vacate the October 2017 order of dismissal and, upon vacatur of that order, for a judgment of foreclosure and sale. With respect to that branch of its motion which was to vacate the October 2017 order of dismissal, the plaintiff contended that it had demonstrated a reasonable excuse for its failure to comply with the deadline set forth in the August 2017 order based on a purported Consumer Financial Protection Bureau loss mitigation hold, which had been placed on the defendant's account on October 11, 2017, and that it had a meritorious cause of action. The defendant opposed the plaintiff's motion. In an order entered March 26, 2019, the Supreme Court denied the plaintiff's motion. The plaintiff appeals.

CPLR 5015(a)(1) authorizes a court to relieve a party from an order or judgment, on motion, upon the ground of "excusable default" (see OneWest Bank, FSB v. Filimon, 205 A.D.3d 1041, 166 N.Y.S.3d 915 ; U.S. Bank, N.A. v....