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September 29, 2021

To Dismiss or Not to Dismiss? Second Department Takes Another Look at Abandonment

The Appellate Division, Second Department ruled that failure to take a default judgment for six years requires dismissal of a complaint under CPLR 3215(c), but it was not on the merits and dismissal should not be with prejudice.

In Deutsche Bank Natl. Trust Co. v. Brathwaite, in an action to foreclose a mortgage, the plaintiff appealed from a NYS Supreme Court, Rockland County order that denied its motion to enter a default judgment against several parties who failed to appear and granted the cross motion of nonparty Brock Tanksley to dismiss the complaint as “abandoned.” The trial court granted this cross motion with prejudice, meaning that the matter was dismissed permanently on the merits and could never be litigated again in court. 

The Second Department modified the trial court order deleting the provision that directed dismissal of the complaint with prejudice, and held that the complaint would be dismissed without prejudice, permitting the plaintiff to present the case again to be decided on the merits as long as the claim was not time barred. Under CPLR 3215(c), if a plaintiff fails to move forward for a default judgment within a year of the default, the court must dismiss the complaint as abandoned, with the one exception being that if sufficient cause can be shown as to why the complaint should not be dismissed, then the complaint is allowed to stand. Sufficient cause requires a reasonable excuse for the delay in moving for default judgment while also showing that the cause of action is potentially meritorious.[1] 

In Deutsche Bank Natl. Trust Co. the Second Department found that the plaintiff’s explanations for the six-year delay in seeking a default judgment, which included foreclosure settlement conferences, service by publication, and a change in counsel, were not sufficient to show a reasonable excuse. Moreover, it concluded that the trial court was correct in granting Tanksley’s cross motion, but clarified that the lower court should not have dismissed the complaint with prejudice since a dismissal under CPLR 3215(c) for abandonment is not a dismissal on the merits or with prejudice. 

Practitioners should know that a motion to dismiss a complaint for abandonment under CPLR 3215(c) is not on the merits, and as long as a party is not time barred, the matter may come before the court again to be decided on the merits.
If you have any questions regarding the content of this alert, please contact Elizabeth Vulaj, associate, at; Matthew Larkin, partner, at; or another member of the Torts & Products Liability Defense Practice Area. 


 [1] See Giglio v. NTIMP, Inc., 86 A.D3d 301 (2d Dept 2011).


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