GMAC Mortgage, LLC v. Todaro

129 A.D.3d 666, 9 N.Y.S.3d 588

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 3, 2015
• Docket: 2013-07641
• Status: Published

Opinion

In an action to foreclose a mortgage, the defendant Jacquelyn Todaro appeals, as limited by her brief, from so much an order of the Supreme Court, Nassau County (McCormack, J.), dated May 17, 2013, as granted that branch of the plaintiff’s motion which was, in effect, for a default judgment of foreclosure and sale and denied that branch of her motion which was pursuant to CPLR 3215 (c) to dismiss the action insofar as asserted against her as abandoned.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the appellant’s contention, the Supreme Court did not err in refusing to dismiss the action insofar as asserted against her as abandoned pursuant to CPLR 3215 (c). It is undisputed that the plaintiff moved for and obtained an order of reference pursuant to RPAPL 1321 within one year of the defendants’ default. By taking this preliminary step toward obtaining a default judgment of foreclosure and sale, the plaintiff initiated proceedings for the entry of the default judgment within the statutory time frame, and, thus, did not abandon the action (see CPLR 3215 [c]; HSBC Bank USA, N.A. v Alexander, 124 AD3d 838, 839 [2015]; U.S. Bank N.A. v Poku, 118 AD3d 980, 981 [2014]; Klein v St. Cyprian Props., Inc., 100 AD3d 711, 712 [2012]; Home Sav. of Am., F.A. v Gkanios, 230 AD2d 770, 771 [1996]).

To the extent that the appellant’s brief purports to also be on behalf of the defendants Barbara Todaro and Janna Todaro, we note that no appeals were taken by those defendants and therefore any contentions raised on their behalf are not properly before this Court.

Mastro, J.P., Balkin, Sgroi and Duffy, JJ., concur.