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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: March 5, 2021

Foreclosure Action Properly Dismissed Because of the Failure of Plaintiff’s Counsel to Appear at a Status Conference

On March 3, 2021, the Second Department issued a decision in Bank of Am., N.A. v. Sofer, 2021 NY Slip Op. 01242, holding that a foreclosure action was properly dismissed because of the failure of plaintiff’s counsel to appear at a status conference, explaining:

In September 2010, the plaintiff commenced this action to foreclose a mortgage on certain residential property in Brooklyn against the defendant Abraham E. Sofer (hereinafter the defendant), among others. The defendant timely filed an answer with counterclaim. Subsequently, the Supreme Court granted the plaintiff’s motion for leave to file an amended reply to the defendant’s counterclaim. In June 2011, after a settlement conference, the matter was referred to the IAS Part. Following a status conference in May 2013, at which the plaintiff’s attorney failed to appear, the court, in an order dated May 28, 2013, sua sponte, directed dismissal of the complaint as abandoned pursuant to CPLR 3215(c) (hereinafter the dismissal order) and vacated the notice of pendency.

In or about December 2017, the plaintiff moved pursuant to CPLR 5015(a) to vacate the dismissal order on the basis that the Supreme Court overlooked the service of the defendant’s answer. In addition, the plaintiff sought to vacate a stipulation of discontinuance that Sweeney, Gallo, Reich & Bolz, LLP (hereinafter Sweeney Gallo) entered into on behalf of the plaintiff, on July 28, 2015, discontinuing the action insofar as asserted against the defendant and cancelling the notice of pendency. In moving to vacate the stipulation of discontinuance, the plaintiff argued that it was a nullity because Sweeney Gallo did not have authority to execute it on behalf of the plaintiff and because it was executed after the action had been dismissed by the court. The defendant opposed the plaintiff’s motion. In an order dated April 26, 2018, the court denied the plaintiff’s motion.

The Supreme Court properly denied the plaintiff’s motion to vacate the dismissal order. Even though the court incorrectly relied on CPLR 3215(c) in sua sponte directing dismissal of the complaint, as the defendant had not defaulted, it is undisputed that the plaintiff’s counsel failed to appear at the May 28, 2013 status conference. Under these circumstances, dismissal of the action was warranted pursuant to 22 NYCRR 202.27(b) based on the plaintiff’s failure to appear. Contrary to the plaintiff’s contention, construing the dismissal as having been made pursuant to 22 NYCRR 202.27(b) does not violate CPLR 5019(a).

(Internal citations omitted).

If you are served with a complaint and fail timely to answer, or if you appear but fail to appear at conferences or oppose a motion, the court can enter judgment against you: a default judgment. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding whether you have been properly served or if a default judgment has been entered against you.

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