BANK OF AMERICA v. ALRASHEED (2021)

Supreme Court, Appellate Division, Second Department, New York.2021-10-27No. 2018–12010

Summary · law.co

Holding. The appellate court affirmed the April 4, 2018 order denying the bank's motion to vacate the dismissal, and dismissed the appeal of the reargument denial as non-appealable.

Bank of America brought a mortgage foreclosure action against the Alrasheed defendants in 2012 after they failed to timely respond to the complaint. In 2016, the bank moved for a default judgment and an order of reference, but did not oppose the defendants' cross-motion to dismiss the case as abandoned under the civil procedure rules. The trial court granted the defendants' cross-motion and denied the bank's requests for default judgment. The bank then sought to vacate that dismissal order and to reargue its earlier motion, but the trial court rejected both requests in 2018.

On appeal, the bank challenged the denial of its motion to vacate and its request to reargue. The appellate court found that the bank failed to identify any valid legal ground for vacating the prior dismissal, such as a reasonable excuse for not opposing the defendants' cross-motion. Because the bank did not advance any appropriate basis for relief, the court upheld the lower court's rejection of the vacatur request. The court also rejected the appeal of the reargument denial on jurisdictional grounds, as appeals do not lie from orders simply denying reargument.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a foreclosing plaintiff may vacate a dismissal granted on an unopposed cross-motion to dismiss for abandonment
Whether failure to oppose a cross-motion may be excused on appeal
Appealability of orders denying requests for reargument

Procedural posture

The plaintiff appealed from a trial court order dated April 4, 2018, which denied the plaintiff's motion to vacate a prior dismissal and denied leave to reargue.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), dated April 4, 2018. The order denied those branches of the plaintiffs motion which were (1), in effect, to vacate so much of an order of the same court dated March 2, 2017, as, in effect, granted that branch of the unopposed cross motion of the defendants Zamerul Alrasheed, Neezamadeen Alrasheed, and Aftab Alrasheed which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against them as abandoned, and (2) for leave to reargue those branches of its prior motion which were for leave to enter a default judgment against those defendants and for an order of reference, which had been denied in the order dated March 2, 2017.

ORDERED that the appeal from so much of the order dated April 4, 2018, as denied that branch of the plaintiffs motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated April 4, 2018, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the defendants Zamerul Alrasheed, Neezamadeen Alrasheed, and Aftab Alrasheed.

In May 2007, the defendants Zamerul Alrasheed, Neezamadeen Alrasheed, and Aftab Alrasheed (hereinafter collectively the defendants) executed a note in favor of the plaintiff in the principal sum of $495,000, which was secured by a mortgage against certain real property. In July 2012, the plaintiff commenced this action to foreclose the mortgage against, among others, the defendants. The defendants failed to timely appear or answer the complaint.

In September 2016, the plaintiff moved, inter alia, for leave to enter a default judgment against the defendants and for an order of reference. The defendants cross-moved, among other things, pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against them as abandoned. The plaintiff did not oppose the defendants’ cross motion. In an order dated March 2, 2017, the Supreme Court denied the plaintiffs motion and, in effect, granted that branch of the defendants’ unopposed cross motion which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against them as abandoned. The plaintiff then moved, among other things, in effect, to vacate so much of the order dated March 2, 2017, as, in effect, granted that branch of the defendants’ unopposed cross motion which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against them as abandoned, and for leave to reargue those branches of its prior motion which were for leave to enter a default judgment against the defendants and for an order of reference. In an order dated April 4, 2018, the court, inter alia, denied those branches of the plaintiffs motion. The plaintiff appeals.

Here, the plaintiff does not raise any contention on appeal that it established a reasonable excuse for its default in opposing the defendants’ cross motion (see CPLR 5015[a][1]), nor does the plaintiff set forth any other basis for vacatur of so much of the order dated March 2, 2017, as, in effect, granted the defendants’ cross motion. Thus, the plaintiff has not advanced any potential basis to grant that branch of its motion which was, in effect, to vacate that portion of the order dated March 2, 2017.

CHAMBERS, J.P., BARROS, WOOTEN and DOWLING, JJ., concur.