NYSCEF doc nos. 60-97 were read on this motion for an order directing the entry of a default judgment. DECISION + ORDER ON MOTION Motion by plaintiff pursuant to CPLR 3215 for an order directing the entry of a default judgment is denied with leave to renew to the extent indicated below. Cross motion by defendant pursuant to CPLR 3215(c) to dismiss the complaint as abandoned is denied, but the court grants defendant leave to interpose an answer pursuant to CPLR 2004 accounting for defendant’s representation that it is ready to serve an answer in the event its cross motion is denied and in light of the state’s strong preference for resolving cases on the merits. CPLR 3215 (c) provides that “[i]f 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. A motion by the defendant under this subdivision does not constitute an appearance in the action.” Here, the default alleged is defendant’s failure to answer within 10 days of the motion court’s denial of the motion to dismiss in seq. no. 001, as to which plaintiff served a copy with notice of entry upon defendant on June 10, 2020. It is undisputed that plaintiff did not move for a default judgment until March 21, 2022, well over a year after the alleged default. Plaintiff argues that defendant waived its right to move to dismiss under CPLR 3215(c) by appearing in the action for the purposes of its motions to dismiss and renew/reargue in motion seq. nos. 001 and 002, respectively. In support of this argument, plaintiff cites to the Appellate Division, Second Department’s decision in Bank of Am., N.A. v. Rice (155 AD3d 593 [2d Dept 2017]). The court held that “[a] defendant may waive the right to seek dismissal pursuant to CPLR 3215(c) by serving an answer or taking ‘any other steps which may be viewed as a formal or informal appearance’” (155 AD3d at 594, quoting Myers v. Slutsky, 139 AD2d 709, 711 [2d Dept 1988]). The court found that the defendant waived its right to seek dismissal under CPLR 3215(c) by filing a notice of appearance (id.). In Myers, the defendant interposed an answer, asserted affirmative defenses, set forth a cross claim for contribution and/or indemnification, demanded the production of various documents, a bill of particulars, and oral depositions (see id. at 709). The Myers Court held that “the filing of a notice of appearance and answer would generally be an appearance in the action” and that “[t]he service of an answer and demand by a defendant, without taking advantage of the provisions of CPLR 3215(c), constitutes a waiver of the benefits of that section” (id. at 710). Here, defendant appeared in connection with the filing of its motion to dismiss in motion seq. no. 001. As such, the court finds that the facts in the instant matter are distinguishable from those present in Myers, where the defendant answered and sought discovery from the plaintiff, and even from those in Bank of Am., N.A., where a notice of appearance, only, was filed. The use of the word “may” in the Appellate Division, Second Department decisions on this issue as to waiver indicates to this court that mere filing of a notice of appearance, or an appearance generally, may not always be outcome determinative as to waiver (see e.g., CPLR 3215[c]). Indeed, in Dooley v. 603 W. 139th St. Realty Corp, the Appellate Division, First Department, upheld the motion court’s granting of a defendant’s motion to dismiss a summons with notice and deemed the action abandoned pursuant to CPLR 3215(c) where the defendant had filed an appearance, made a demand for a complaint pursuant to CPLR 3012(b), and moved to dismiss the complaint on statute of limitations grounds prior to the plaintiff serving the complaint and cross moving for a default judgment 13 months later (11 AD3d 403, 404 [1st Dept 2004]). Nonetheless, most recently, the Appellate Division, First Department, in MTGLQ Investors, L.P. v. Shay, reversed the motion court’s granting of the plaintiff’s motion to confirm a referee’s report and for a judgment of foreclosure, among other things, and granted the defendant’s previously denied cross motion to dismiss pursuant to CPLR 3215(c), holding that the defendant “did not waive its CPLR 3215(c) argument by simply filing a notice of appearance without more, such as a responsive pleading” (190 AD3d 527, 528 [1st Dept 2021], citing Sports Legends, Inc. v. Carberry, 38 AD3d 470, 470 [1st Dept 2007]). In Sports Legends, the court held that a defendant does not waive its right to move for dismissal under CPLR 3215(c) by appearing, even informally, on the merits (38 AD3d at 470). Yet the court notes that the recent trend in the Appellate Division, First Department has been to adopt the reasoning of the Appellate Division, Second Department on this issue (see e.g., HSBC v. Lugo, 127 AD3d 502, 503 [1st Dept 2015]). Moreover, the court’s opinion in MTGLQ builds upon the holding in Sports Legends by adding the clause regarding a responsive pleading. Based upon the foregoing, the court finds that a fair reading of MTGLQ indicates that the filing of a responsive pleading would constitute a defendant’s waiver of the right to dismissal under CPLR 3215(c). The court notes that defendant in its reply papers on the cross motion cited to MTGLQ but paraphrased the sentence regarding a responsive pleading constituting waiver in its citation by completely omitting the part of the sentence referring to a responsive pleading (NYSCEF doc no. 97). Counsel for cross movant is strongly cautioned against such similar omissions in any future filings before this court. The omitted portion of the sentence completely undercuts defendant’s argument and accords with established Appellate Division, Second Department precedent. The court finds upon a review of the relevant and cited cases that, contrary to defendant’s contentions, some of which the court finds, as noted, are misleading at best, there remains little if any daylight between the First and Second Departments on this issue. The remaining question presented is therefore whether defendant’s motion to dismiss constitutes a responsive pleading. In the Appellate Division, First Department, such motions are responsive pleadings (see BDO USA, LLP v. Phoenix Four, Inc., 113 AD3d 507, 511 [1st Dept 2014] (citing with approval the commentary that “the defendant who has moved to dismiss under CPLR 3211 has already done as much in the litigation (and more) than if she had merely answered the complaint”); see also CPLR 3011 and 3217). Here, defendant served a CPLR 3211 motion to dismiss and followed up with a CPLR 2221 motion to renew and reargue. As such, the court finds that defendant filed responsive pleadings and has waived its right to move to dismiss under CPLR 3215(c) based on the Appellate Division, First Department’s holding in MTGLQ. CONCLUSION Accordingly, it is ORDERED that the motion in seq. no. 003 is denied; and it is further ORDERED that the cross motion in seq. no. 003 is denied; and it is further ORDERED that pursuant to CPLR 2004 defendant’s time to answer is enlarged to the extent that it is ORDERED that defendant shall interpose an answer on or before April 14, 2023, and it is further ORDERED that no further enlargement of the time to answer will be given; and it is further ORDERED that, if defendant fails to interpose its answer on or before April 14, 2023, plaintiff shall renew its motion pursuant to CPLR 3215 for an order directing the entry of a default judgment due to defendant’s failure to answer timely no later than April 28, 2023, with all filing fees waived as to any papers filed by movant as a part of the renewed motion; and it is further ORDERED that all parties are directed to appear in Part 23, located at 71 Thomas Street Room 311, New York, New York 10013-3821, on Wednesday, May 3, 2023, at 9:30 a.m., for a discovery conference; and it is further ORDERED that all parties are directed to read and abide by the part’s rules, located at https://www.nycourts.gov/legacypdfs/courts/1jd/supctmanh/Rules/Part23-Rules.pdf. The foregoing constitutes the decision and order of the court. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: April 4, 2023
