Flagstar Bank, FSB v. Roberts

Flagstar Bank, FSB v Roberts 2026 NY Slip Op 05519 September 30, 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. Flagstar Bank, FSB, respondent, v Anton Roberts, appellant, et al., defendants. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on September 30, 2026 2024-11054, (Index No. 33577/08) Flora Rainer (Daniel Richland and New York Litigation Group, PLLC, Rochester, NY [Austin T. Shufelt], of counsel) for appellant. Friedman Vartolo LLP, New York, NY (Ronald P. Labeck of counsel), for respondent. [*1] DECISION & ORDER In an action to foreclose a mortgage, the defendant Anton Roberts appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated March 19, 2024. The order granted that branch of the plaintiff's motion which was pursuant to CPLR 2221(a) to vacate an order of the same court dated March 20, 2014, sua sponte, directing dismissal of the complaint as abandoned pursuant to CPLR 3215(c), and to restore the action to the active calendar. ORDERED that the order dated March 19, 2024, is affirmed, with costs. In December 2008, the plaintiff commenced this action to foreclose a mortgage against the defendant Anton Roberts (hereinafter the defendant), among others. The defendant failed to timely answer the complaint. On March 16, 2009, the plaintiff filed a request for judicial intervention seeking a residential mortgage foreclosure settlement conference. In an order dated March 20, 2014 (hereinafter the dismissal order), the Supreme Court, sua sponte, directed dismissal of the complaint as abandoned pursuant to CPLR 3215(c). In January 2024, the plaintiff moved, inter alia, pursuant to CPLR 2221(a) to vacate the dismissal order and to restore the action to the active calendar. The defendant opposed the motion. In an order dated March 19, 2024, the court granted that branch of the plaintiff's motion. The defendant appeals. CPLR 3215(c) provides, in relevant part, that "[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, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." "The language of CPLR 3215(c) is not, in the first instance, discretionary, but mandatory, inasmuch as courts 'shall' dismiss claims for which default judgments are not sought within the requisite one-year period, as those claims are then deemed abandoned" (Deutsche Bank Natl. Trust Co. v Marcelin, 245 AD3d 796, 797 [citation and internal quotation marks omitted]). Here, the plaintiff filed a request for judicial intervention and requested a foreclosure settlement conference as mandated by CPLR 3408 within one year of the defendant's default. Such formal requests generally constitute "proceedings to bring the case to a judgment, thereby negating any intent to abandon the action" (U.S. Bank N.A. v 63 Holiday Dr. Realty Corp., 230 AD3d 713, 714 [internal quotation marks omitted]; see U.S. Bank N.A. v Newson, 240 AD3d 821, 822; cf. US Bank Trust N.A. v Meyer, 244 AD3d 900, 901). The defendant's specific contention that a prior version of CPLR 3408, which was in effect at the time this action was commenced, did not require a settlement conference to be held is improperly raised for the first time on appeal. Contrary to the defendant's contention, that branch of the plaintiff's motion which was pursuant to CPLR 2221(a) to vacate the dismissal order and to restore the action to the active calendar was not subject to any specific time limitation (see Deutsche Bank Natl. Trust Co. v Porter, 246 AD3d 1033, 1034-1035). In addition, because the plaintiff did not fail to take timely proceedings for the entry of a judgment against the defendant within the meaning of CPLR 3215(c), the plaintiff was not required to demonstrate an excuse for its purported delay in moving to vacate the dismissal order (see id.). The defendant's remaining contentions are without merit. Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was pursuant to CPLR 2221(a) to vacate the dismissal order and to restore the action to the active calendar. DILLON, J.P., BRATHWAITE NELSON, LOVE and MCCORMACK, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court