Deutsche Bank National Trust Co. v. Medina

Summary

The Appellate Division, First Department, affirmed the dismissal of a foreclosure complaint as abandoned under CPLR 3215(c). The court held that the defendant's failure to vacate his default did not waive his right to seek dismissal, and that participation in settlement conferences did not constitute a formal or informal appearance on the merits.

Holdings

1. A defendant's failure to move to vacate a default in answering or appearing does not waive the defendant's right to seek dismissal of the complaint as abandoned under CPLR 3215(c).
2. Participation in settlement conferences did not constitute a formal or informal appearance because Medina did not actively litigate the action or participate on the merits.
3. Dismissal under CPLR 3215(c) was warranted even without prejudice to Medina because plaintiff failed to seek entry of a default judgment within one year and failed to establish sufficient cause for the delay.

Questions Presented

1. Whether a defendant's failure to move to vacate a default waives the defendant's right to seek dismissal of a foreclosure complaint as abandoned under CPLR 3215(c).
2. Whether participation in settlement conferences constitutes a formal or informal appearance that prevents dismissal under CPLR 3215(c).
3. Whether dismissal under CPLR 3215(c) requires prejudice to the defendant or is avoided when the plaintiff fails to establish sufficient cause for the delay.

Disposition

affirmed