Wells Fargo Bank, N.A. v Buffenmyer

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Wells Fargo Bank, N.A. v Buffenmyer 2015 NY Slip Op 09766 Decided on December 31, 2015 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 31, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND DEJOSEPH, JJ.
1409 CA 15-01024

[*1]WELLS FARGO BANK, N.A., PLAINTIFF-APPELLANT,

v

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