Page 17 - WCBA CLE 6-14-2022

16

against the defendant and thereafter moved, inter alia, for summary judgment on the
complaint. The moving papers included the RPAPL 1304 notice which identified the
default amount as $64,862.12 over 57 days. RPAPL 1304 requires the creditor to
unilaterally determine the default amount it believes due at the time and advise the
homeowner fo that sum and an RPAPL 1304 notice will not be rendered defective
because of an alleged inaccuracy in the stated default amount. However, as the
defendant placed the plaintiff’s standing at issue, the plaintiff was required to establish
its standing. Here, the plaintiff failed to establish prima facie that it had standing to
commence the action as it was not the original lender, the note bore no indorsement,
and the plaintiff failed to produce evidence that the note was assigned to it prior to the
date of commencement.

Citibank, N.A. v Kerszko, 203 AD3d 42 [Jan 5, 2022][Justice Dillon, opinion;
Justices Austin, Chambers concur; Justice Barros dissents; Justice Duffy
concurs with the dissent]:

HOLDING ON APPEAL: The lender’s presentment of a proposed ex parte order of
reference within the one-year statutory period established its intent to proceed toward
the entry of judgment and not to abandon the action and constitutes “taking
proceedings” for the entry of judgment pursuant to CPLR 3215( c).

FACTS: This foreclosure action was commenced in March 2009 and the defendant
failed to appear, answer, or otherwise move to dismiss the complaint. A mandatory
settlement conference was conducted in May 2009 but was unproductive. In November
2009, the plaintiff presented to the Supreme Court a proposed ex parte order of
reference based on the defendant’s default. The Supreme Court declined to sign the
proposed order which was not contained in the record on appeal. The Supreme Court
referred to it in the order appealed from. In 2015, the plaintiff moved for an order of
reference. The Supreme Court denied the motion and directed dismissal of the
complaint as abandoned.

This Court found that the plaintiff’s ex parte order, which was presented within the one-
year period for taking proceedings satisfied the statutory requirement. This Court
determined that if the state legislature had intended to restrict "taking proceedings" to
formal motion practice only, it could have said so as well. To "take proceedings" is a
broader and more encompassing concept than a more tightly defined "filing" or
"service" of a motion for leave to enter a default judgment or other type of motion.

DISSENT: The plaintiff's contention that it took proceedings for the entry of judgment
within one year after the defendant's default, which would preclude a dismissal under
CPLR 3215©, was never raised by the plaintiff in the Supreme Court, and is, therefore,

8