Bank of Am., N.A. v. Lichter

2021 NY Slip Op 01740, 192 A.D.3d 957, 140 N.Y.S.3d 775

Opinion

Bank of Am., N.A. v Lichter (2021 NY Slip Op 01740)

Bank of Am., N.A. v Lichter

2021 NY Slip Op 01740

Decided on March 24, 2021

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 24, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
SYLVIA O. HINDS-RADIX
COLLEEN D. DUFFY
LINDA CHRISTOPHER, JJ.

2018-14742
(Index No. 8654/09)

[*1]Bank of America, N.A., respondent,

v

Menachem Lichter, et al., appellants.

Condon Catina & Mara, PLLC, Nanuet, NY (Amy M. Mara and Brian Condon of counsel), for appellants.

Pincus Law Group, PLLC, Uniondale, NY (Barry M. Weiss of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants appeal from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Rockland County (Paul I. Marx, J.), dated September 28, 2018. The order and judgment, insofar as appealed from, denied that branch of the defendants' cross motion which was pursuant to CPLR 3215(c) to dismiss the complaint as abandoned.

ORDERED that the order and judgment of foreclosure and sale is affirmed insofar as appealed from, with costs.

CPLR 3215(c) provides that "[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" (see Bank of Am., N.A. v Rice, 155 AD3d 593, 593). 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" (id. at 594 [internal quotation marks omitted]; see U.S. Rof III Legal Tit. Trust 2015-1 v John, 189 AD3d 1645; Wilmington Sav. Fund Socy., FSB v Chishty, 179 AD3d 1147, 1148-1149; US Bank N.A. v Gustavia Home, LLC, 156 AD3d 843, 844).

Here, the defendants waived their right to seek dismissal of the complaint pursuant to CPLR 3215(c) by filing a notice of appearance in 2016 (see CPLR 320[a]; U.S. Rof III Legal Tit. Trust 2015-1 v John, 189 AD3d 1645; Wilmington Sav. Fund Socy., FSB v Chishty, 179 AD3d at 1148-1149; US Bank N.A. v Gustavia Home, LLC, 156 AD3d at 844; Bank of Am., N.A. v Rice, 155 AD3d at 594). Therefore, the Supreme Court correctly denied that branch of the defendants' cross motion which was pursuant to CPLR 3215(c) to dismiss the complaint as abandoned.

CHAMBERS, J.P., HINDS-RADIX, DUFFY and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court