U.S. Bank N.A. v. Jones

Opinion

U.S. Bank N.A. v Jones

2026 NY Slip Op 05128

August 26, 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.

U.S. Bank National Association, etc., respondent,

v

Anthony Jones, et al., defendants, Black Plaza Management, LLC, appellant.

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

Decided on August 26, 2026

2023-06811, (Index No. 704157/17)

Valerie Brathwaite Nelson, J.P.

Linda Christopher

Lourdes M. Ventura

Donna-Marie E. Golia, JJ.

George Gavalas, New Hyde Park, NY (Christopher Rosado of counsel), for appellant.

LOGS Legal Group LLP, Rochester, NY (Ellis M. Oster of counsel), for respondent.

[*1]

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Black Plaza Management, LLC, appeals from an order of the Supreme Court, Queens County (Laurentina S. McKetney Butler, J.), entered March 30, 2023. The order, insofar as appealed from, denied those branches of that defendant's motion which were pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against it as abandoned or, in the alternative, for leave to renew that branch of its prior cross-motion which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against it as abandoned, which had been denied in an order of the same court (Janice A. Taylor, J.) entered June 2, 2022.

ORDERED that the order entered March 30, 2023, is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendant Black Plaza Management, LLC, which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against it as abandoned, and substituting therefor a provision granting that branch of the motion; as so modified, the order entered March 30, 2023, is affirmed insofar as appealed from, with costs to the defendant Black Plaza Management, LLC.

In March 2017, the plaintiff commenced this action against the defendant Black Plaza Management, LLC (hereinafter Black Plaza), among others, to foreclose a mortgage on certain real property located in Jackson Heights. Black Plaza failed to answer the complaint or otherwise appear in the action except for the motion practice discussed herein. In December 2019, the plaintiff moved, inter alia, for leave to enter a default judgment against Black Plaza. Black Plaza opposed the motion and cross-moved, among other things, pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against it as abandoned. In an order entered June 2, 2022, the Supreme Court denied the plaintiff's motion and Black Plaza's cross-motion. As to the cross-motion, the court determined that Black Plaza had failed to provide proof of service of the cross-moving papers on the nonappearing defendants, and the court, therefore, declined to entertain the merits of the cross-motion.

In September 2022, the plaintiff moved for leave to renew and reargue that branch of its prior motion which was for leave to enter a default judgment against Black Plaza. Black Plaza opposed the motion, and separately moved, inter alia, pursuant to CPLR 3215(c) to dismiss the [*2]complaint insofar as asserted against it as abandoned or, in the alternative, for leave to renew that branch of its prior cross-motion which was for the same relief. In an order entered March 30, 2023, the Supreme Court, among other things, denied those branches of Black Plaza's motion. Black Plaza appeals.

Pursuant to CPLR 3215(c), "[i]f 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." "This statute is strictly construed, as [t]he language of CPLR 3215(c) is not, in the first instance, discretionary, but mandatory, inasmuch as courts 'shall' dismiss claims (CPLR 3215[c]) for which default judgments are not sought within the requisite one-year period, as those claims are then deemed abandoned" (Ocwen Loan Servicing, LLC v Buonauro, 233 AD3d 972, 974 [internal quotation marks omitted]; see Wells Fargo Bank, N.A. v Wercberger, 244 AD3d 1029, 1031). However, a court has the discretion to excuse a failure to timely seek a default if "sufficient cause is shown why the complaint should not be dismissed" (CPLR 3215[c]; see Wells Fargo Bank, N.A. v Wercberger, 244 AD3d at 1031). "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" (Ocwen Loan Servicing, LLC v Buonauro, 233 AD3d at 974 [internal quotation marks omitted]; see Wells Fargo Bank, N.A. v Wercberger, 244 AD3d at 1031). "Although the determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court, reversal is warranted if that discretion is improvidently exercised" (Butindaro v Grinberg, 57 AD3d 932, 932; see Deutsche Bank Natl. Trust Co. v Charles, 186 AD3d 454, 456).

Here, the plaintiff failed to establish that it took proceedings toward the entry of a default judgment against Black Plaza within one year of Black Plaza's default (see US Bank Trust N.A. v Meyer, 244 AD3d 900, 901-902; Ocwen Loan Servicing, LLC v Buonauro, 233 AD3d at 974). Further, the plaintiff failed to proffer a reasonable excuse for its delay, as its proffered excuses were either without merit (see Wilmington Sav. Fund Socy., FSB v Nifenecker, 236 AD3d 971, 975; U.S. Bank N.A. v Moster, 196 AD3d 663, 665) or conclusory and unsubstantiated (see Wells Fargo Bank, N.A. v Wercberger, 244 AD3d at 1031; Chase Home Fin., LLC v Dasuja, 204 AD3d 638, 640; Wells Fargo Bank, N.A. v Cafasso, 158 AD3d 848, 849-850). Since the plaintiff failed to establish a reasonable excuse for its delay, this Court need not consider whether the plaintiff had a potentially meritorious cause of action (see Ocwen Loan Servicing, LLC v Buonauro, 233 AD3d at 975; Citimortgage, Inc. v Kimmerling, 220 AD3d 838, 840).

The parties' remaining contentions either are without merit, are improperly raised for the first time on appeal, or need not be reached in light of our determination.

Accordingly, the Supreme Court should have granted that branch of Black Plaza's motion which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against it as abandoned.

BRATHWAITE NELSON, J.P., CHRISTOPHER, VENTURA and GOLIA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court