Maspeth Federal Savings & Loan Ass'n v. Brooklyn Heritage, LLC

138 A.D.3d 793, 28 N.Y.S.3d 325

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 13, 2016
• Docket: 2014-07053
• Status: Published

Opinion

In an action to foreclose a mortgage, the defendant Brooklyn Heritage, LLC, appeals from an order of the Supreme Court, Kings County (Ash, J.), dated June 6, 2014, which denied its motion pursuant to CPLR 3215 (c) to dismiss the complaint insofar as asserted against it.

Ordered that the order is affirmed, with costs.

In this mortgage foreclosure action, the defendant Brooklyn Heritage, LLC (hereinafter BH), appeals from an order denying its motion pursuant to CPLR 3215 (c) to dismiss the complaint as abandoned insofar as asserted against it.

The failure to timely seek a default on an unanswered complaint or counterclaim may be excused if “sufficient cause is shown why the complaint should not be dismissed” (CPLR 3215 [c]). This Court has interpreted this language as requiring both a reasonable excuse for the delay in timely moving for a default judgment, plus a demonstration that the cause of action is potentially meritorious (see LNV Corp. v Forbes, 122 AD3d 805, 806 [2014]; Giglio v NTIMP, Inc., 86 AD3d 301, 308 [2011]). The determination of whether an excuse is reasonable in any given instance is committed to the sound discretion of the motion court (see Giglio v NTIMP, Inc., 86 AD3d at 308). Here, the plaintiff showed a reasonable excuse for the delay and a potentially meritorious cause of action. Thus, under the circumstances of this case, the Supreme Court providently exercised its discretion in denying BH’s motion pursuant to CPLR 3215 (c) to dismiss the complaint insofar as asserted against it (see LNV Corp. v Forbes, 122 AD3d at 806-807).

The parties’ remaining contentions are without merit.

Eng, P.J., Mastro, Leventhal and Miller, JJ., concur.