WELLS FARGO BANK, N.A. v. BUFFENMYER, LUKE ( 2015 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1409
CA 15-01024
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND DEJOSEPH, JJ.
WELLS FARGO BANK, N.A., PLAINTIFF-APPELLANT,
V MEMORANDUM AND ORDER
LUKE BUFFENMYER, DEFENDANT-RESPONDENT,
AND HOME HEADQUARTERS, INC., DEFENDANT.
REED SMITH LLP, NEW YORK CITY (JOSEPH B. TEIG OF COUNSEL), FOR
PLAINTIFF-APPELLANT.
Appeal from an order of the Supreme Court, Onondaga County
(Deborah H. Karalunas, J.), dated October 1, 2014. The order denied
plaintiff’s motion to restore this action to the court’s calender.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: In seeking to restore this foreclosure action to
Supreme Court’s calendar after it had been dismissed, plaintiff was
required to “demonstrate a potentially meritorious cause of action, a
reasonable excuse for the delay in prosecuting the action, a lack of
intent to abandon the action, and a lack of prejudice to the
defendants” (Vaream v Corines, 78 AD3d 933, 933). We agree with
plaintiff that the order of reference and judgment of foreclosure and
sale are sufficient to establish the merit of the action (see GMAC
Mtge., LLC v Alfred, 2015 NY Slip Op 51621[U], *1 [Sup Ct, Albany
County, 2015]). Plaintiff failed, however, to establish a reasonable
excuse for its delay (see Okun v Tanners, 11 NY3d 762, 763; Sang Seok
Na v Greyhound Lines, Inc., 88 AD3d 980, 981), lack of intent to
abandon the action, or lack of prejudice to defendants (see Sierra R.
v Jamaica Hosp. Med. Ctr., 101 AD3d 701, 703).
Entered: December 31, 2015 Frances E. Cafarell
Clerk of the Court