Plaintiff Aurora Loan Services LLC commenced this action against defendants Aaron Wider, Wider as Trustee of the Wider Family Trust, the Wider Family Trust, HTFC Corporation, Victoria Stasichin, as administratrix of the estate of Daniel Stasichin and Barbara Shane. Plaintiff sought to quiet title and declare that Nationstar Mortgage a valid first mortgage lien on the real property located at 44 Sand Street, Massapequa, New York superior to the claims asserted by Stasichin as fee owner and Shane as recorded first mortgagee. Plaintiff also sought damages for claims of unjust enrichment, fraud and conversion as to the Wider Defendants. After a bench trial the Court determined the satisfaction of the Nationstar Mortgage was fraudulently recorded by Wider, however Stasichin and Shane were bone fide purchasers and encumbrancers for value and without notice of the fraud. Consequently the claims of plaintiff to declare its mortgage a valid mortgage on the premises was dismissed.

Intervenor subordinate mortgagee move to dismiss foreclosure of first mortgagee on the basis the plaintiff failed to proceed to judgment within one year of the defendants’ defaults. Appellate Division reversed and dismissed foreclosure complaint. CPLR 3215(c) provides that if the plaintiff fails to take proceedings for the entry of judgment within one year after [a] 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. 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). However the plaintiff failed to timely take the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference to establish that it initiated proceedings for entry of a judgment within one year of the defaults for the purposes of satisfying CPLR 3215(c)

Landmark decision where the First Department affirmed lower court’s summary judgment declaring plaintiff’s was on constructive notice of easement recorded against the master, base lot despite the County Clerk’s failure to re-index the easement against plaintiff’s subsequently sub-divided lot. The plaintiff was under the obligation to search the chain of title back to the master lot and was not excused by the County Clerk’s failure to re-index the easement.