203 A.D.3d 42
N.Y. App. Div.2022Background
- Plaintiff (Citibank) commenced a residential mortgage foreclosure in March 2009; defendant Kerszko defaulted and never answered.
- In November 2009 plaintiff presented a proposed ex parte order of reference to the Supreme Court; the court refused to sign it because the supporting affidavit left blank key dates.
- Plaintiff took no further steps for several years; new counsel moved for an order of reference in 2015 (unopposed).
- Supreme Court (Feb. 10, 2016) denied the 2015 motion and, sua sponte, dismissed the complaint as abandoned under CPLR 3215(c), finding the November 2009 presentment did not constitute "taking proceedings."
- Plaintiff sought relief from that order; a subsequent denial (Jan. 18, 2017) gave rise to an earlier appeal that was later dismissed for failure to perfect; this appeal challenges the Feb. 2016 dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant / Court (opposing) Argument | Held |
|---|---|---|---|
| Whether presenting a proposed ex parte order of reference to a judge within one year of default qualifies as "taking proceedings" under CPLR 3215(c) | The November 2009 presentment manifested intent to proceed and therefore satisfied CPLR 3215(c)’s one‑year "take proceedings" requirement | The court below (and dissent) viewed the submission as improper/unfiled ex parte material that did not constitute a formal motion or filing and thus did not meet CPLR 3215(c) | Majority: presentment within one year qualified as taking proceedings; CPLR 3215(c) did not permit dismissal on that basis |
| Whether the Supreme Court's sua sponte reasoning (that the 2009 presentment failed to qualify) was preserved and appealable | Plaintiff: sua sponte reasoning arose under the same CPLR 3215(c) framework raised in its motion, so the court's rationale was self‑preserving and appealable | Dissent: Sholes requires following procedure for appellate review of sua sponte rulings; plaintiff did not follow that procedure and earlier procedural choices preclude review | Majority: sua sponte reasoning was self‑preserved and appealable (but granted leave to appeal); concurrence agreed to grant leave; dissent would dismiss or require leave |
| Whether Bray v. Cox (and related preclusion for a prior unperfected appeal) bars this appeal | Plaintiff: prior appeal dismissal is not properly before this Court and Bray does not preclude consideration here | Dissent: prior appeal from related order was dismissed for failure to perfect; Bray should bar relitigation of same issue | Majority: Bray issue not properly before Court on this record and, in any event, does not preclude relief; Court declines to apply Bray here |
| Whether plaintiff waived/preserved the "took proceedings" argument by not asserting it below | Plaintiff: moved below on CPLR 3215(c) issues and the court’s own discussion preserved the point; entitlement may be reviewed on the merits | Dissent: plaintiff argued only "sufficient cause" below and therefore changed theory on appeal; the argument is unpreserved and fact‑driven | Majority: considered the argument preserved by the court's sua sponte reasoning and reached the merits; dissent disagreed |
Key Cases Cited
- Bray v. Cox, 38 N.Y.2d 350 (N.Y.) (doctrine limiting issues on subsequent appeals after an earlier appeal was dismissed for failure to perfect)
- Sholes v. Meagher, 100 N.Y.2d 333 (N.Y.) (procedure for seeking appellate review of sua sponte trial‑court determinations)
- Rosenblatt v. St. George Health & Racquetball Assoc., LLC, 119 A.D.3d 45 (2d Dep't) (trial court may rely sua sponte on legal grounds within the same CPLR framework raised by a noticed motion; such reasoning can be reviewed)
- Tirado v. Miller, 75 A.D.3d 153 (2d Dep't) (distinguishing when sua sponte reasoning is permissible on non‑dispositive branches of a motion)
- Freedom Mtge. Corp. v. Engel, 37 N.Y.3d 1 (N.Y.) (need for reliable, objective rules when construing statutes that affect access to courts)
- Caffrey v. North Arrow Abstract & Settlement Servs., Inc., 160 A.D.3d 121 (2d Dep't) (caution about taking judicial notice of court‑generated documents without providing parties an opportunity to be heard)
- HSBC Mtge. Corp. v. Hasan, 186 A.D.3d 1495 (2d Dep't) (insufficient record to show an order of reference was presented or filed can defeat a "took proceedings" claim)
- U.S. Bank, N.A. v. Duran, 174 A.D.3d 768 (2d Dep't) (examples and application of what constitutes taking proceedings under CPLR 3215(c))
- Citimortgage, Inc. v. Zaibak, 188 A.D.3d 982 (2d Dep't) (RJI filing held to manifest intent to proceed in some contexts)
- Aurora Loan Servs., LLC v. Gross, 139 A.D.3d 772 (2d Dep't) (application of "take proceedings" doctrine in foreclosure context)