A plaintiff has a duty to move a lawsuit forward, even where a defendant defaults by failing to respond to the summons and complaint. Under CPLR 3215(c), where a defendant defaults, the plaintiff must move the proceedings towards default judgment within one year, or the lawsuit is subject to dismissal.
A plaintiff, as a result, may not simply rest on its laurels when a defendant defaults. Instead, plaintiff should move for default judgment within one year of the default. Notably, it is the seeking of the relief, not the obtaining of the relief that is relevant under the statute's timing requirement. New York courts have "repeatedly held that it is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant to CPLR 3215(c)." Wells Fargo Bank, NA. v Daskal, 142 A.D.3d 1071, 1072 (2d Dept. 2016). In fact, even if a default judgment motion is timely filed and then withdrawn, and a subsequent default judgment motion is filed more than one year after the default, courts have held that the plaintiff complied with CPLR 3215(c). LNV Corporation v. Forbes, 122 A.D.3d 805 (2d Dept. 2014). This scenario is not uncommon. It allows the plaintiff a reprieve if the initial default judgment motion papers are procedurally defective or contain a minor error necessitating re-filing.
In some instances, a plaintiff may miss its CPLR 3215(c) deadline and be subject to dismissal. To avoid dismissal, the plaintiff may argue that, although it has not timely sought default judgment, it has nonetheless taken proceedings towards default judgment. Indeed, "as long as proceedings are being taken, and these proceedings manifest an intent not to abandon the case but to seek a judgment, the case should not be subject to dismissal." Washington Mut. Bank, FA v. Milford—Jean—Gille, 2017 NY Slip Op 06211, *1-2 (2d Dept. 2017).
For example, multiple appellate decisions hold that the filing of an RJI is sufficient to be deemed initiating proceedings for the entry of a default judgment so to avoid dismissal under CPLR 3215(c). Federal National Mortgage Association v. Edmund-Henry, 188 A.D.3d 652, (2d Dept. 2020). In contrast, mere internal preparation, or internal stays on litigation, will not be sufficient. 1077 Madison St. v. Dickerson, 197 A.D.3d 443, 444 (2d Dept. 2021).
In a worst case scenario, where a plaintiff misses the filing deadline and cannot demonstrate having otherwise taking proceedings towards default judgment, plaintiff must demonstrate "sufficient cause" to avoid dismissal. In order to demonstrate "sufficient cause," plaintiff is required to present valid excuse for delay in proceeding with action and to demonstrate meritorious claim. Under such circumstances, a court may grant default judgment motions made more than one year after a default, under CPLR3215(c). Forbes, 122 A.D.3d at 805.
In Iorizzo v. Mattikow, 25 A.D.3d 762 (2d Dept. 2006), for example, the appellate court affirmed the denial of CPLR 3215(c) motion despite a nine (9) year delay in seeking default judgment because the plaintiffs demonstrated a reasonable excuse for the delay – specifically law office failure as it pertained to the status of the case – and a meritorious claim. A reasonable excuse could range from law office oversight – such as mis-calendaring a deadline – to filing errors. However, dismissal under CPLR 3215(c) for non-compliance is mandatory and not discretionary and demonstrating a "reasonable excuse" even for a short period of non-compliance, is a high bar to meet. State Farm Mut. Auto. Ins. Co. v. Rodriguez, 12 AD3d 662 (2d Dept. 2004).
A plaintiff should be particularly wary of ensuring compliance with CPLR 3215(c), and in instances where initial compliance is not demonstrated, immediately seek to move the lawsuit forward to avoid dismissal. This is particularly true in the context of mortgage foreclosure litigation where under the recently-enacted Foreclosure Abuse Prevention Act ("FAPA"), a dismissal pursuant to CPLR 3215(c) falls outside the protections of CPLR 205(a) and is now governed by CPLR 205-a, which excludes such dismissals form the six months savings clause that would allow for the re-filing of such actions. A dismissal pursuant to CPLR 3215(c) that occurs more than six years after commencement would then likely result in a bar to enforcement of the mortgage for failing to timely seek default judgment years earlier.
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