WELLS FARGO BANK, N.A. v. BUFFENMYER, LUKE

Appellate Division of the Supreme Court of New York

WELLS FARGO BANK, N.A. v. BUFFENMYER, LUKE

134 A.D.3d 1578, 21 N.Y.S.3d 921

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 31, 2015

DocketCA 15-01024

StatusPublished

This text of 134 A.D.3d 1578 (WELLS FARGO BANK, N.A. v. BUFFENMYER, LUKE) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

WELLS FARGO BANK, N.A. v. BUFFENMYER, LUKE, 134 A.D.3d 1578, 21 N.Y.S.3d 921 (N.Y. Ct. App. 2015).

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Opinion

Appeal from an order of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.), dated October 1, 2014. The order denied plaintiff’s motion to restore this action to the court’s calender.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: In seeking to restore this foreclosure action to Supreme Court’s calendar after it had been dismissed, plaintiff was required to “demonstrate a potentially meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendants” (Vaream v Corines, 78 AD3d 933, 933 [2010]). We agree with plaintiff that the order of reference and judgment of foreclosure and sale are sufficient to establish the merit of the action (see GMAC Mtge., LLC v Alfred, 49 Misc 3d 1214[A], 2015 NY Slip Op 51621[U], *1 [Sup Ct, Albany County 2015]). Plaintiff failed, however, to establish a reasonable excuse for its delay (see Okun v Tanners, 11 NY3d 762, *1579 763 [2008]; Sang Seok Na v Greyhound Lines, Inc., 88 AD3d 980, 981 [2011]), lack of intent to abandon the action, or lack of prejudice to defendants (see Sierra R. v Jamaica Hosp. Med. Ctr., 101 AD3d 701, 703 [2012]). Present — Smith, J.P., Peradotto, Lindley, Whalen and DeJoseph, JJ.

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Appeal from an order of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.), dated October 1, 2014. The order denied plaintiff’s motion to restore this action to the court’s calender.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: In seeking to restore this foreclosure action to Supreme Court’s calendar after it had been dismissed, plaintiff was required to “demonstrate a potentially meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendants” (Vaream v Corines, 78 AD3d 933, 933 [2010]). We agree with plaintiff that the order of reference and judgment of foreclosure and sale are sufficient to establish the merit of the action (see GMAC Mtge., LLC v Alfred, 49 Misc 3d 1214[A], 2015 NY Slip Op 51621[U], *1 [Sup Ct, Albany County 2015]). Plaintiff failed, however, to establish a reasonable excuse for its delay (see Okun v Tanners, 11 NY3d 762, *1579 763 [2008]; Sang Seok Na v Greyhound Lines, Inc., 88 AD3d 980, 981 [2011]), lack of intent to abandon the action, or lack of prejudice to defendants (see Sierra R. v Jamaica Hosp. Med. Ctr., 101 AD3d 701, 703 [2012]). Present — Smith, J.P., Peradotto, Lindley, Whalen and DeJoseph, JJ.

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Bluebook (online)

134 A.D.3d 1578, 21 N.Y.S.3d 921, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wells-fargo-bank-na-v-buffenmyer-luke-nyappdiv-2015.

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