HSBC Bank USA, N.A. v. Bornstein

Opinion

HSBC Bank USA, N.A. v Bornstein

2026 NY Slip Op 04933

August 12, 2026

Appellate Division, Second Department

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

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

HSBC Bank USA, N.A., respondent,

v

Nathan Bornstein, et al., appellants, et al., defendants.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 12, 2026

2024-00607, (Index No. 506306/15)

Francesca E. Connolly, J.P.

William G. Ford

Helen Voutsinas

Laurence L. Love, JJ.

Law Office of Samuel Katz, PLLC, Brooklyn, NY (Joseph J. Schwartz of counsel), for appellants.

LOGS Legal Group LLP, Rochester, NY (Virginia Grapensteter of counsel), for respondent.

[*1]

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Nathan Bornstein, Esther Bornstein, and Yehuda Bornstein, as trustee of "NEB 3-06 Trust," appeal from an order of the Supreme Court, Kings County (Larry D. Martin, J.), dated July 21, 2023. The order, insofar as appealed from, denied that branch of those defendants' cross-motion which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against the defendant Yehuda Bornstein, as trustee of "NEB 3-06 Trust," as abandoned.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the cross-motion of the defendants Nathan Bornstein, Esther Bornstein, and Yehuda Bornstein, as trustee of "NEB 3-06 Trust," which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against the defendant Yehuda Bornstein, as trustee of "NEB 3-06 Trust," as abandoned is granted.

In May 2015, the plaintiff commenced this action against the defendants Nathan Bornstein, Esther Bornstein, and Yehuda Bornstein, as trustee of "NEB 3-06 Trust" (hereinafter collectively the defendants), among others, to foreclose a mortgage encumbering certain real property located in Brooklyn. Nathan Bornstein and Esther Bornstein (hereinafter together the answering defendants) timely answered the complaint. Yehuda Bornstein, as trustee of "NEB 3-06 Trust" (hereinafter the non-answering defendant), did not.

In December 2019, the plaintiff moved, among other things, for leave to enter a default judgment against the non-answering defendant and for leave to discontinue the action insofar as asserted against the answering defendants. The defendants opposed that branch of the plaintiff's motion which was for leave to enter a default judgment against the non-answering defendant and cross-moved, inter alia, pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against the non-answering defendant as abandoned.

In an order dated July 21, 2023, the Supreme Court, inter alia, granted that branch of the plaintiff's motion which was for leave to discontinue the action insofar as asserted against the [*2]answering defendants and denied the defendants' cross-motion. The defendants appeal from so much of the order as denied that branch of their cross-motion which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against the non-answering defendant as abandoned.

"CPLR 3215(c) provides that if 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" (Greenpoint Mtge. Funding, Inc. v Recinos, 241 AD3d 796, 798 [internal quotation marks omitted]; see U.S. Bank N.A. v Jerriho-Cadogan, 224 AD3d 788, 789). "To avoid dismissal pursuant to CPLR 3215(c), it is not necessary for a plaintiff to actually obtain a default judgment within one year of the default" (U.S. Bank N.A. v Jerriho-Cadogan, 224 AD3d at 789 [alteration and internal quotation marks omitted]; see Deutsche Bank Natl. Trust Co. v Khalil, 208 AD3d 555, 557). "Rather, as long as proceedings are being taken, and these proceedings manifest an intent not to abandon the case but to seek a judgment, the case should not be subject to dismissal" (U.S. Bank N.A. v 63 Holiday Dr. Realty Corp., 230 AD3d 713, 714 [internal quotation marks omitted]; see Deutsche Bank Natl. Trust Co. v Attard, 197 AD3d 619, 620-621).

When evaluating the actions of a plaintiff under CPLR 3215(c) to assess whether it took proceedings for a judgment within one year after the defendant's default, "[t]he one-year statutory time frame is not one year from the commencement of the action, but one year from when the defendant's answer or responsive motion was due, which itself is measured from when service is deemed complete" (Federal Natl. Mtge. Assn. v Bandhu, 239 AD3d 708, 710 [internal quotation marks omitted]).

Here, the parties do not dispute that the plaintiff did not complete service of the summons and complaint within the 120-day time period mandated by CPLR 306-b, that the plaintiff moved to validate its late service nunc pro tunc in January 2016, and that the plaintiff's motion was granted in an order dated September 28, 2016. It is also undisputed that the non-answering defendant did not thereafter appear in the action and that the plaintiff did not move for leave to enter a default judgment against the non-answering defendant within one year following the non-answering defendant's default. Rather, the record indicates that the plaintiff was directed by the Supreme Court, twice, to resume prosecution of the action. On October 9, 2017, the plaintiff filed a motion, among other things, for summary judgment on the issue of liability against the answering defendants and for leave to enter default judgment against the non-answering defendant; however, that motion was withdrawn at the plaintiff's request on October 16, 2017. No further action was taken by the plaintiff until December 2019, when the plaintiff moved, inter alia, for leave to enter a default judgment against the non-answering defendant. Based on these facts, it cannot be concluded that the plaintiff took sufficient proceedings for the entry of judgment within one year after the non-answering defendant's default within the meaning of CPLR 3215(c).

Accordingly, the Supreme Court should have granted that branch of the defendants' cross-motion which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against the non-answering defendant as abandoned (see Deutsche Bank Natl. Trust Co. v Ennis, 236 AD3d 987).

CONNOLLY, J.P., FORD, VOUTSINAS and LOVE, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court