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Wells Fargo Bank, N.A. v. Combs

128 A.D.3d 812 Court N.Y. App. Div. Decision date 2015-05-13 English

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p. 812
Wells Fargo Bank, N.A., Respondent, v Lois Combs et al., Appellants, et al., Defendants.
[10 NYS3d 121]

In an action to foreclose a mortgage, the defendants Lois Combs and Marc Combs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Hart, J.), entered April 2, 2014, as denied that branch of their motion which was to dismiss the complaint insofar as asserted against them.

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

In 2007, the plaintiff commenced this action to foreclose a mortgage on a residential property located in Queens. The defendants Lois Combs and Marc Combs (hereinafter together the Combs defendants) failed to timely file an answer or otherwise respond to the complaint, and they did not move to extend the time to appear or answer (see CPLR 3012 [a], [d]).

p. 813
After more than six years without an appearance in the action, the Combs defendants moved, inter alia, pursuant to CPLR 3215 (c) to dismiss the complaint insofar as asserted against them on the ground that the plaintiff “fail[ed] to take proceedings for the entry of judgment within one year” (CPLR 3215 [c]) after the Combs defendants’ default in appearing or answering. At the same time, the Combs defendants challenged the plaintiffs standing to commence this foreclosure action. The Supreme Court rejected the Combs defendants’ arguments and denied their motion.

Within a few months after the Combs defendants’ default in appearing or answering, the plaintiff took the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference. Thus, the plaintiff initiated proceedings for entry of a judgment within one year of the default, and there was no basis for the dismissal of the complaint pursuant to CPLR 3215 (c) (see Klein v St. Cyprian Props., Inc., 100 AD3d 711 , 712 [2012]; Home Sav. of Am., F.A. v Gkanios, 230 AD2d 770 , 771 [1996]; see also U.S. Bank N.A. v Poku, 118 AD3d 980 , 981 [2014]; Mortgage Elec. Registration Sys., Inc. v Smith, 111 AD3d 804 , 806 [2013]).

Additionally, the Combs defendants waived their argument that the plaintiff lacked standing to commence the foreclosure action because they never appeared or answered (see JP Morgan Mtge. Acquisition Corp. v Hayles, 113 AD3d 821 , 822 [2014]; Deutsche Bank Natl. Trust Co. v Hussain, 78 AD3d 989 , 990 [2010]; Deutsche Bank Natl. Trust Co. v Young, 66 AD3d 819 [2009])- Mastro, J.P., Leventhal, Maltese and Duffy, JJ., concur.

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