Ohio Savings Bank v. Decaudin

Appellate Division of the Supreme Court of New York

Ohio Savings Bank v. Decaudin

129 A.D.3d 925, 10 N.Y.S.3d 443

Appellate Division of the Supreme Court of the State of New York·Decided June 17, 2015·No. 2013-08708·Published·Cited by 5 cases

Opinion

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Westchester County *926 (Scheinkman, J.), entered July 11, 2013, which granted the motion of the defendant David Brown pursuant to CPLR 3215 (c) to dismiss the complaint insofar as asserted against him.

Ordered that the order is affirmed, with costs.

To avoid dismissal of the action as abandoned pursuant to CPLR 3215 (c), the plaintiff was required to demonstrate a reasonable excuse for its delay in seeking a default judgment and a potentially meritorious cause of action (see Pipinias v J. Sackaris & Sons, Inc., 116 AD3d 749, 751 [2014]; Giglio v NTIMP, Inc., 86 AD3d 301, 307-308 [2011]). The plaintiff failed to offer a reasonable excuse for its delay of seven years in seeking a default judgment after the defendant David Brown failed to serve a responsive pleading. Accordingly, the Supreme Court properly granted Brown’s motion pursuant to CPLR 3215 (c) to dismiss the complaint insofar as asserted against him as abandoned (see 115-41 St. Albans Holding Corp. v Estate of Harrison, 71 AD3d 653, 653-654 [2010]; Staples v Jeff Hunt Devs., Inc., 56 AD3d 459 [2008]; Counsel Abstract, Inc. Defined Benefit Pension Plan v Jerome Auto Ctr., Inc., 23 AD3d 274 [2005]; State St. Bank & Trust Co. v Francis, 284 AD2d 324, 324-325 [2001]).

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

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In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Westchester County *926 (Scheinkman, J.), entered July 11, 2013, which granted the motion of the defendant David Brown pursuant to CPLR 3215 (c) to dismiss the complaint insofar as asserted against him.

Ordered that the order is affirmed, with costs.

To avoid dismissal of the action as abandoned pursuant to CPLR 3215 (c), the plaintiff was required to demonstrate a reasonable excuse for its delay in seeking a default judgment and a potentially meritorious cause of action (see Pipinias v J. Sackaris & Sons, Inc., 116 AD3d 749, 751 [2014]; Giglio v NTIMP, Inc., 86 AD3d 301, 307-308 [2011]). The plaintiff failed to offer a reasonable excuse for its delay of seven years in seeking a default judgment after the defendant David Brown failed to serve a responsive pleading. Accordingly, the Supreme Court properly granted Brown’s motion pursuant to CPLR 3215 (c) to dismiss the complaint insofar as asserted against him as abandoned (see 115-41 St. Albans Holding Corp. v Estate of Harrison, 71 AD3d 653, 653-654 [2010]; Staples v Jeff Hunt Devs., Inc., 56 AD3d 459 [2008]; Counsel Abstract, Inc. Defined Benefit Pension Plan v Jerome Auto Ctr., Inc., 23 AD3d 274 [2005]; State St. Bank & Trust Co. v Francis, 284 AD2d 324, 324-325 [2001]).

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

Ohio Savings Bank v. Decaudin, 129 A.D.3d 925, 10 N.Y.S.3d 443 (N.Y. Ct. App. 2015).

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