The Filing of a Settlement Conference RJI Insufficient -- This Time -- to Avoid Dismissal Under CPLR 3215(c)

By: Jonathan H. Freiberger

By way of brief background, and as set forth in one of our prior Blogs, Rule 3215(c) of the New York Civil Practice Law and Rules provides, in pertinent part, that:

If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed….  [Emphasis added.]

Courts have noted that the language of CPLR 3215(c) is mandatory in the first instance unless plaintiff demonstrates “sufficient cause” for the failure to timely “take proceedings for the entry of [a default] judgment]”. See, e.g., U.S. Bank Trust N.A. v. Valle, 247 A.D.3d 1086, 1088 (2^nd Dep’t 2026); Wells Fargo Bank v. Cafasso, 158 A.D.3d 848, 849 (2^nd Dep’t 2018). The Cafasso Court (quoting Giglio v. NTIMP, Inc., 86 A.D.3d 301 (2^nd Dep’t 2011)), noted that “sufficient cause” “‘requir[es] both a reasonable excuse for the delay in timely moving for a default judgment, plus a demonstration that the cause of action is potentially meritorious.’”  Cafasso, 158 A.D.3d at 849; see also Valle, 247 A.D.3d at 1089; Wells Fargo Bank, N.A. v. Robinson-John, 220 A.D.3d 974, 977 (2^nd Dep’t 2023).  The “reasonableness” of an excuse is within the sound discretion of the motion court. See, e.g., US Bank, N.A v. Onuoha, 162 A.D.3d 1094, 1095–96 (2^nd Dep’t 2018) (citations omitted); Cafasso, 158 A.D.3d at 849 (citations omitted).  

Finally, a default judgment need not be obtained within one year, as long as proceedings to obtain a default judgment that “manifest an intent not to abandon the case, but to seek a judgment” have been initiated.  Citizens Bank, N.A. v. Abrams, 2026 WL 1236819 at *3 (2^nd Dep’t May 6, 2026) (citations and internal quotation marks omitted); see also Bank of America, N.A. v. Bhola, 219 A.D.3d 430, 432 (2^nd Dep’t 2023). In mortgage foreclosure actions, the preliminary step of moving for an order of reference is deemed to be a sufficient “proceeding” toward the entry of judgment to satisfy the one-year time frame of CPLR 3215(c).  See, e.g., Deutsche Bank v. Delisser, 161 A.D.3d 942, 943 (2^nd Dep’t 2018); Bank of Am., N.A. v. Lucido, 163 A.D.3d 614, 615 (2^nd Dep’t 2018); Mort. Electronic Registration Systems, Inc. v. McVicar, 203 A.D.3d 915, 916-17 (2^nd Dep’t 2022).  

In Citibank, N.A. v. Kerszko, 203 A.D.3d 42 (2^nd Dep’t 2022), the Court answered in the affirmative, the “interesting” question of “whether the presentment to a court of a proposed ex parte order to show cause for an order of reference, which is rejected by the court for defects inherent in the papers, qualifies as a taking of proceedings for the entry of judgment pursuant to CPLR 3215(c), so as to avoid dismissal of the complaint as abandoned under that statute.”  Kerszko, 203 A.D.3d at 43 – 44.  In so doing, the Kerszko Court, provided a thoughtful analysis of, inter alia, what it means to “take proceedings” under CPLR 3215(c). 

The Second Department, in U.S. Bank N.A. v. Jerriho-Cadogan, 224 A.D.3d 788, 790 (2^nd Dep’t 2024), held that the plaintiff took the necessary “proceedings” by filing an RJI seeking a foreclosure settlement conference within a foreclosure action as mandated by CPLR 3408 because a “settlement conference is a necessary prerequisite to obtaining a default judgment.” (Citations omitted.)

On May 13, 2026, the Appellate Division, Second Department, decided U.S. Bank N. A. v. Islam, a mortgage foreclosure action decided under CPLR 3215(c). In 2012, the lender in Islam commenced a mortgage foreclosure action against the borrower, who failed to timely answer or otherwise appear in the action. Three years later, the lender moved for a default judgment and an order of reference. Shortly thereafter, the motion court granted the lender’s motion and referred the matter to a referee to compute the amounts due under the mortgage. Four years after that, in 2019, the motion court conditionally dismissed the action as abandoned.

In 2021, the borrower moved to dismiss the complaint pursuant to CPLR 3215(c). The lender cross-moved to vacate the 2019 dismissal order and for a judgment of foreclosure and sale. The motion court denied the borrower’s motion and granted the lender’s cross-motion. On the borrower’s appeal the Second Department reversed. First, the Court found that the lender failed to “take proceedings for the entry of judgment within one year after the [borrower]'s default.” Like in Jerriho-Cadogan, the lender filed an RJI for a foreclosure settlement conference. However, the Court, finding the filing insufficient in this case, stated:

Although the [lender] filed a request for judicial intervention requesting a foreclosure settlement conference within the one-year period after the defendant's default, a settlement conference was not required in this case because the defendant did not reside at the property subject to foreclosure (see CPLR 3408[a][1]). As such, the filing of the request for judicial intervention did not constitute the taking of proceedings for the entry of a judgment pursuant to CPLR 3215(c) and did not toll the one-year deadline to do so (see US Bank N.A. v Pane, [237 A.D.3d 1237, 1239 (2^nd Dep’t 2025)]. [Hyperlinks added.]

Finally, the Court, unmoved by the lender’s excuse for not taking timely proceedings for the entry of judgment, stated:

Moreover, the [lender] failed demonstrate a reasonable excuse for its failure to timely take proceedings for the entry of judgment. Contrary to the [lender]'s contention, the [lender]'s change of attorney does not constitute a reasonable excuse for its delay in taking proceedings for the entry of judgment under these circumstances, and in any event, the change of attorney occurred after the statutory one year period expired. Since the [lender] failed to proffer a reasonable excuse for its delay, this Court need not consider whether the [lender] had a potentially meritorious cause of action.

Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.