Justice Phyllis Orlikoff Flug sitting in a Foreclosure Part in Queens County Supreme Court recently had a case where the defendants moved to dismiss the bank’s lawsuit in a foreclosure legal action. The lawsuit had been initiated against the defendants Michael Pertab and Cholying Pertab in 2010. Michael had been served by personal service in July 2010 and Cholying had been served by substituted legal service in August 2010.
After more than 4 ½ years after the lawsuit was initiated the defendants appeared in this lawsuit. The court took notice the lawsuit was more than 4 ½ years old before the defendants decided to appear in the case.
Law Requires Entry of a Default Judgment Within One Year
Justice Flug took note that New York Civil Practice Law and Rules Section 3215(c) stated that if a plaintiff failed to take action to enter a judgment within one year after the default took place no entry should be made, but instead, the claim should be dismissed as being abandoned. The only exception to this rule was if there was sufficient cause shown why the dismissal should not be warranted. In this case Judge Flug found the plaintiff’s excuses for the delay in entering the judgment included a change of their lawyer, issues concerning the assignment of the mortgage to a new party, and administrative order 431/11. However, Justice Flug found that none of the explanations justified their delay of 4 ½ years with regard to moving forward to enter a default judgment. Justice Flug therefore granted the defendants’ (homeowners) motion to dismiss the case.
Conclusion
If a bank brings a lawsuit against you and they fail to enter a judgment within one year you have a basis for moving to have the action dismissed. A one year delay in banks moving forward to enter judgment is not unusual!
Elliot S. Schlissel is a foreclosure defense lawyer representing homeowners with regard to obtaining mortgage modifications and fighting foreclosure lawsuits throughout the Metropolitan New York area.
