DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Rockland County (Rolf M. Thorsen, J.), dated September 27, 2022.

The order denied the plaintiff’s motion pursuant to CPLR 5015(a)(4) to vacate an order of the same court (Victor J. Alfieri, Jr., J.) entered October 9, 2015, inter alia, directing dismissal of the complaint pursuant to CPLR 3215(c) as abandoned, to restore the action to the active calendar, and to substitute the administrator of the estate of Jean Sanon in place of the defendant Jean Sanon.

ORDERED that the order dated September 27, 2022, is affirmed, with costs.

The plaintiff commenced this action in January 2009 against, among others, the defendant Jean Sanon to foreclose a mortgage encumbering certain real property located in Chestnut Ridge (hereinafter the subject property).

Sanon failed to appear or answer the complaint. In July 2012, Sanon died.

By order entered October 9, 2015, the Supreme Court denied the plaintiff’s unopposed motion, inter alia, in effect, for leave to enter a default judgment against Sanon and for an order of reference.

The court also directed dismissal of the complaint pursuant to CPLR 3215(c) based on the plaintiff’s failure to take proceedings for the entry of judgment within one year of Sanon’s default in appearing or answering the complaint (hereinafter the dismissal order).

In February 2020, the plaintiff moved pursuant to CPLR 5015(a)(4) to vacate the dismissal order and to restore the action the active calendar, arguing that the Supreme Court was without jurisdiction to enter the order because Sanon had died prior to the issuance of the dismissal order and, thus, the court was divested of jurisdiction until such time as a legal representative of the estate was substituted for the deceased defendant in this action.

The plaintiff’s motion also sought, pursuant to CPLR 1015 and 1021, to substitute the administrator of Sanon’s estate in place of Sanon. In an order dated September 27, 2022, the court denied the motion, and the plaintiff appeals.

“The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person . . . upon the ground of . . . lack of [*2]jurisdiction to render the judgment or order” (id. § 5015[a][4]).

“‘Generally, the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a personal representative for the decedent'”

(Nationstar Mtge., LLC v Azcona, 186 AD3d 614, 615 [internal quotation marks omitted], quoting Lambert v Estren, 126 AD3d 942, 943; see Neuman v Neumann, 85 AD3d 1138, 1139).

“However, if a party’s death does not affect the merits of a case, there is no need for strict adherence to the requirement that the proceedings be stayed pending substitution”

(Nationstar Mtge., LLC v Azcona, 186 AD3d at 615-616; see Nationstar Mtge., LLC v Persaud, 231 AD3d 842; Alaska Seaboard Partners Ltd. Partnership v Grant, 20 AD3d 436, 437).

“Indeed, a mortgagor who has been duly served with notice of a foreclosure action and defaults in appearing is not entitled to notice of any subsequent judgment or sale”

(Nationstar Mtge., LLC v Azcona, 186 AD3d at 616; see Alaska Seaboard Partners Ltd. Partnership v Grant, 20 AD3d at 437).

Here, the copy of an affidavit of service in the record on appeal indicates that Sanon was served on January 14, 2009, pursuant to CPLR 308(2), by delivery of a copy of the summons and complaint to a person of suitable age and discretion at the subject property, followed by the required mailing to Sanon at the same address.

It is undisputed that Sanon failed to appear or answer the complaint.

Since Sanon defaulted in appearing or answering the complaint approximately 3½ years prior to his death, neither he nor any of his successors in interest was entitled to notice of a judgment of foreclosure or of an ensuing sale of the subject property

(see Nationstar Mtge., LLC v Azcona, 186 AD3d at 615-616).

Pursuant to CPLR 3215(c), the plaintiff’s time to take proceedings for the entry of judgment expired approximately 2½ years prior to Sanon’s death.

Under the circumstances, the Supreme Court correctly determined that Sanon’s death did not affect the merits of this action, and there was no need to strictly adhere to the requirement for a stay pending substitution (see id.).

Since the court was not divested of jurisdiction upon Sanon’s death, the dismissal order was properly issued.

Accordingly, the court properly denied the plaintiff’s motion pursuant to CPLR 5015(a)(4) to vacate the dismissal order, to restore the action to the active calendar, and to substitute the administrator of the estate of Jean Sanon in place of Sanon.

The remaining contentions of the plaintiff and nonparty estate of Jean Sanon either need not be reached in light of our determination or are not properly before this Court.

CONNOLLY, J.P., MILLER, VENTURA and HOM, JJ., concur.

ENTER:Darrell M. Joseph

Clerk of the Court

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Nassau County (David P. Sullivan, J.), dated October 7, 2022.

The order denied the plaintiff’s motion pursuant to CPLR 5015(a) to vacate an order of the same court (R. Bruce Cozzens, Jr., J.) dated October 14, 2020, directing dismissal of the action pursuant to 22 NYCRR 202.27(b), upon the plaintiff’s failure to appear at a hearing to determine the validity of service of process, and to restore the matter to the court’s calendar.

ORDERED that the order dated October 7, 2022, is affirmed, with costs.

In 2009, the plaintiff commenced this action against the defendants Carlos Ortiz and Olga Ortiz (hereinafter together the defendants), among others, to foreclose a mortgage encumbering certain real property located in Hicksville.

The defendants failed to appear or answer the complaint.

The Supreme Court issued an order of reference and subsequently entered a judgment of foreclosure and sale upon their default in answering or appearing in the action.

Thereafter, Olga Ortiz (hereinafter Olga) moved, inter alia, pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her, on the ground that she was not properly served with process (see Bank of N.Y. Mellon v Ortiz, 174 AD3d 489, 489).

In an order entered April 26, 2017 (hereinafter the April 2017 order), the Supreme Court denied those branches of Olga’s motion.

On appeal, this Court reversed the April 2017 order, insofar as appealed from, and remitted the matter for a hearing to determine whether Olga was properly served with process, and for a new determination thereafter of those branches of her motion which were pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her (see Bank of N.Y. Mellon v Ortiz, 174 AD3d at 489).

On October 14, 2020, the plaintiff failed to appear for the scheduled hearing.

By order dated October 14, 2020, the Supreme Court directed dismissal of the action pursuant to 22 NYCRR 202.27(b) upon the plaintiff’s failure to appear at the hearing (hereinafter the dismissal order).

In February 2021, the plaintiff moved pursuant to CPLR 5015(a) to vacate the dismissal [*2]order and to restore the action to the court’s calendar.

The court denied the motion. The plaintiff appeals.

Pursuant to 22 NYCRR 202.27(b), upon a party’s failure to appear at any scheduled call of a calendar or at any conference or hearing, the court may note the default on the record, and, where the defendant appears but the plaintiff does not, dismiss the action

(see U.S. Bank N.A. v Roberts, 216 AD3d 1038, 1040).

Generally, in order to vacate a default in appearing at a scheduled conference or hearing, the defaulting party must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action or defense to the action

(see id.; Davis v 574 Lafa Corp., 206 AD3d 613, 614-615).

However, in the absence of actual notice of a conference or hearing date, a party could not have been in default for failing to appear at that conference or hearing

(see J.P. Morgan Mtge. Acquisition Corp. v Daniel, 190 AD3d 707, 709; Notaro v Performance Team, 161 AD3d 1093, 1095).

In that situation, the party’s default is considered a nullity, and vacatur of the default is “required as a matter of law and due process, and no showing of a potentially meritorious [cause of action or] defense is required”

(Bonik v Tarrabocchia, 78 AD3d 630, 632; see J.P. Morgan Mtge. Acquisition Corp. v Daniel, 190 AD3d at 709; Notaro v Performance Team, 161 AD3d at 1095).

Here, the plaintiff submitted, among other things, a printout of the eCourts docket for this matter, which showed, inter alia, that a hearing scheduled for March 23, 2020, was marked “adjourned,” and a hearing scheduled for May 11, 2020, was marked “adjourned.”

The plaintiff also submitted an affidavit of an employee of McCabe, Weisberg & Conway, LLC (hereinafter McCabe), in which that employee averred, among other things, that McCabe began representing the plaintiff on August 24, 2020, and that McCabe was not served with notice of the hearing scheduled for October 14, 2020.

However, these submissions failed to establish that the plaintiff’s prior counsel did not receive notice of the hearing scheduled for October 14, 2020, at any time prior to August 24, 2020.

Therefore, under the circumstances of this case, the plaintiff did not establish that it did not have actual notice of the hearing scheduled for October 14, 2020

(see Beneficial Homeowner Serv. Corp. v Horan, 230 AD3d 1210, 1211).

For similar reasons, the plaintiff’s contention that it demonstrated a reasonable excuse for its default based upon its purported lack of notice of the hearing scheduled for October 14, 2020, is also without merit (see id.).

As the plaintiff failed to proffer a reasonable excuse for its default, it is unnecessary to determine whether the plaintiff demonstrated the existence of a potentially meritorious cause of action

(see CPLR 5015[a][1]; Beneficial Homeowner Serv. Corp. v Horan, 230 AD3d at 1212; HSBC Bank USA, N.A. v. Hutchinson, 215 AD3d 645, 647).

Accordingly, the Supreme Court properly denied the plaintiff’s motion pursuant to CPLR 5015(a) to vacate the dismissal order and to restore the matter to the court’s calendar.

CONNOLLY, J.P., MILLER, VENTURA and HOM, JJ., concur.

ENTER: Darrell M. Joseph

Clerk of the Court

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Larry D. Martin, J.), dated October 5, 2023.

The order, insofar as appealed from, denied those branches of the plaintiff’s motion which were to vacate an order of the same court (Noach Dear, J.) dated November 6, 2017, directing dismissal of the action pursuant to CPLR 3216 and to restore the action to the active calendar.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In January 2010, the plaintiff commenced this action to foreclose a mortgage on certain real property located in Brooklyn.

In an order dated July 19, 2017, the Supreme Court stated that, at a status conference held one day prior, the plaintiff’s counsel had appeared and updates were provided to the court.

Based on these updates and the case history, the court found “that more than one year has passed since the joinder of issue and [the p]laintiff has unreasonably neglected to prosecute this action,” and the court directed the plaintiff to “resume prosecution of the action by [either moving] for entry of judgment or [filing] a note of issue within [90] days after receipt of this order.”

This order further provided that, if the plaintiff “fails to do so within the specified time period, this Court will issue a subsequent order dismissing this case pursuant to CPLR 3216 without notice to the parties.”

The plaintiff did not comply with the order dated July 19, 2017.

In an order dated November 6, 2017, the Supreme Court directed dismissal of the action pursuant to CPLR 3216, finding, inter alia, that the court “served a [CPLR] 3216 notice (‘the Order’) upon [the p]laintiff’s counsel by Certified Mail Return Receipt Requested” and that the postal service records reflected that the notice was “successfully delivered and signed for” on July 27, 2017.

On June 30, 2023, the plaintiff moved, inter alia, to vacate the order dated November 6, 2017, directing dismissal of the action pursuant to CPLR 3216 and to restore the action to the active calendar, arguing, among other things, that the order dated July 19, 2017, did not comply with CPLR 3216.

By order dated October 5, 2023, the Supreme Court, inter alia, denied those branches [*2]of the motion.

The plaintiff appeals.

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”

(Deutsche Bank Natl. Trust Co. v Beckford, 202 AD3d 1049, 1050 [internal quotation marks omitted]; see CPLR 3216[b][3];

Bank of N.Y. Mellon v Buxbaum, 231 AD3d 784).

“An action cannot be dismissed 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 90-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 Beckford, 202 AD3d at 1050; see CPLR 3216[b][3];

Nationstar Mtge., LLC v Retemiah, 195 AD3d 628, 629).

Further, where a written demand to resume prosecution of the action is served by the court, “the demand shall set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation”

(CPLR 3216[b][3]; see Rhodehouse v CVS Pharm., Inc., 151 AD3d 771, 773).

“[A] conditional order of dismissal may have the same effect as a valid 90-day notice pursuant to CPLR 3216”

(Bank of N.Y. Mellon v Buxbaum, 231 AD3d at 785; see Deutsche Bank Natl. Trust Co. v Henry, 189 AD3d 1357, 1358).

Contrary to the plaintiff’s contention, the language of the order dated July 19, 2017, clearly advised the plaintiff that its failure to comply with the demand to resume prosecution would serve as a basis for dismissal of the action for failure to prosecute

(see CPLR 3216[b][3]; cf. Deutsche Bank Natl. Trust Co. v Beckford, 202 AD3d at 1050).

Contrary to the plaintiff’s further contention, the Supreme Court properly determined that, under the circumstances, the court provided sufficiently detailed notice of the specific conduct constituting the plaintiff’s neglect.

CONNOLLY, J.P., MILLER, VENTURA and HOM, JJ., concur.

ENTER: Darrell M. Joseph

Clerk of the Court