Nationstar Mtge., LLC v. Adekoje

Opinion

Nationstar Mtge., LLC v Adekoje

2026 NY Slip Op 05315

September 16, 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.

Nationstar Mortgage, LLC, etc., appellant,

v

Maxwell Adekoje, et al., defendants, Elizabeth Akpojosevbe, respondent.

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

Decided on September 16, 2026

2021-00393, (Index No. 23425/08)

Francesca E. Connolly, J.P.

Linda Christopher

Barry E. Warhit

Carl J. Landicino, JJ.

Robertson, Anschutz, Schneid, Crane & Partners, PLLC, Westbury, NY (Joseph F. Battista of counsel), for appellant.

Gomberg Legal, P.C., Ossining, NY (Stanislav Gomberg of counsel), for respondent.

[*1]

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Laura L. Jacobson, J.), dated September 17, 2014. The order denied the plaintiff's motion to restore the action to the active calendar and vacate so much of an order of the same court dated December 6, 2011, as tolled the accrual of interest on the subject mortgage loan.

ORDERED that the order dated September 17, 2014, is reversed, on the law, with costs, and the plaintiff's motion to restore the action to the active calendar and vacate so much of the order dated December 6, 2011, as tolled the accrual of interest on the subject mortgage loan is granted.

On February 9, 2007, the defendants Maxwell Adekoje and Elizabeth Akpojosevbe executed a note in the amount of $450,500, which was secured by a mortgage encumbering real property located in Brooklyn. In August 2008, the plaintiff commenced this action to foreclose the mortgage. The plaintiff moved for an order of reference in January 2009, but later requested to withdraw that motion in November 2010. In an order dated December 6, 2011 (hereinafter the December 2011 order), the Supreme Court granted the plaintiff's request to withdraw its motion and, inter alia, tolled the accrual of interest on the mortgage loan until a new order of reference was filed. In an order dated September 10, 2013 (hereinafter the conditional order of dismissal), following a status conference held the same day, the action was conditionally dismissed unless the plaintiff filed a note of issue or otherwise proceeded for the entry of a judgment within 90 days.

In January 2014, the plaintiff moved to restore the action to the active calendar and vacate so much of the December 2011 order as tolled the accrual of interest on the mortgage loan. In an order dated September 17, 2014, the Supreme Court denied the plaintiff's motion. The plaintiff appeals. We reverse.

"CPLR 3216 permits a court, on its own initiative, to dismiss an action for want of prosecution where certain conditions precedent have been complied with" (BankUnited v Kheyfets, 150 AD3d 948, 949; see CPLR 3216[b][3]). As relevant here, an action cannot be dismissed [*2]pursuant to CPLR 3216(a) "'unless a written demand is served upon the party against whom such relief is sought in accordance with the statutory requirements, along with a statement that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him [or her] for unreasonably neglecting to proceed'" (Deutsche Bank Natl. Trust Co. v Bastelli, 164 AD3d 748, 749-750 [internal quotation marks omitted], quoting Cadichon v Facelle, 18 NY3d 230, 235). "While a conditional order of dismissal may have the same effect as a valid 90-day notice pursuant to CPLR 3216" (U.S. Bank N.A. v Spence, 175 AD3d 1346, 1348 [internal quotation marks omitted]), here, the conditional order of dismissal was defective in that it did not state that the plaintiff's failure to comply with the notice will serve as a basis for a motion by the court to dismiss the complaint for failure to prosecute (see Bank of Am., N.A. v Ali, 202 AD3d 726, 727; U.S. Bank N.A. v Spence, 175 AD3d at 1348; Deutsche Bank Natl. Trust Co. v Bastelli, 164 AD3d at 750). "In the absence of proper notice, the court was without power to dismiss the action for the plaintiff's failure to comply with the conditional order of dismissal" (Deutsche Bank Natl. Trust Co. v Bastelli, 164 AD3d at 750 [internal quotation marks omitted]). Under these circumstances, the action should have been restored to the active calendar.

Moreover, the Supreme Court should have vacated so much of the December 2011 order as tolled the accrual of interest on the mortgage loan. The record does not reflect that the defendants requested that relief or that the December 2011 order was issued on consent, and the plaintiff "was not afforded any notice nor an opportunity to be heard on this issue which amounted to a denial of the [plaintiff]'s due process rights" (21st Mtge. Corp. v Nweke, 165 AD3d 616, 618-619; see Wachovia Mtge., FSB v Josef, 137 AD3d 1012, 1014). Further, the record does not reflect that the plaintiff engaged in conduct that warranted tolling the accrual of interest on the mortgage loan at that time (see Wachovia Mtge., FSB v Josef, 137 AD3d at 1014).

Accordingly, we reverse the order dated September 17, 2014, and grant the plaintiff's motion to restore the action to the active calendar and vacate so much of the December 2011 order as tolled the accrual of interest on the mortgage loan.

CONNOLLY, J.P., CHRISTOPHER, WARHIT and LANDICINO, JJ., concur.

2021-00393 DECISION & ORDER ON MOTION

Nationstar Mortgage, LLC, etc., appellant, v Maxwell

Adekoje, et al., defendants, Elizabeth Akpojosevbe,

respondent.

(Index No. 23425/08)

Appeal from an order of the Supreme Court, Kings County, dated September 17, 2014. Motion by the respondent, inter alia, in effect, to strike stated portions of the appellant's brief on the ground that they refer to matter dehors the record. By decision and order on motion of this Court dated April 11, 2022, that branch of the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is,

ORDERED that the branch of the motion which is, in effect, to strike stated portions of the appellant's brief on the ground that they refer to matter dehors the record is granted to the extent that the following portions of the appellant's brief are stricken and have not been considered in the determination of the appeal: (1) on page 1, the first sentence of the fourth paragraph; (2) on page 2, the second paragraph, except for the first sentence of that paragraph; (3) on page 7, the first [*3]full paragraph; and (4) on page 12, the second sentence of the third full paragraph; and that branch of the motion is otherwise denied.

CONNOLLY, J.P., CHRISTOPHER, WARHIT and LANDICINO, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court