Citibank, N.A. v Kerszko, 2022 NY Slip Op 00032 [203 AD3d 42]
January 5, 2022
Dillon, J.
[*1]
Citibank, N.A., Appellant,
v
Ryan Kerszko, Respondent, et al., Defendants.
Second Department, January 5, 2022 APPEARANCES OF COUNSEL Sandelands Eyet LLP , New York City ( Kathleen Cavanaugh of counsel), for appellant.
{**203 AD3d at 43} OPINION OF THE COURT Dillon, J.P. This appeal raises a variety of interesting and unusual issues. We address for the first time in this Department whether {**203 AD3d at 44} 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. It does qualify. We also address whether the basis of a court’s reasoning in determining a motion, when raised by the court sua sponte, self-preserves that basis for an appeal by a party aggrieved by it. It does. We also address certain limitations upon the application of the doctrine of Bray v Cox (38 NY2d 350 [1976]), as relevant to the unique circumstances of this appeal.
I. Relevant Facts This appeal arises from a residential mortgage foreclosure action commenced in the Supreme Court on March 5, 2009. The plaintiff alleged that the defendant Ryan Kerszko defaulted on the monthly installment payment obligations set forth in the note evidencing the loan. In the complaint, the plaintiff accelerated the balance of the outstanding debt and sought to foreclose on the mortgaged premises, located in St. Albans. Kerszko failed to appear, answer, or otherwise move to dismiss the complaint. A mandatory CPLR 3408 settlement conference was conducted on May 27, 2009, but was unproductive.
On or about November 12, 2009, the plaintiff presented to the Supreme Court a proposed ex parte order of reference. The proposed order of reference was presented ex parte as a result of Kerszko’s continued default in failing to answer the complaint. The affidavit submitted in support of the proposed ex parte order of reference was incomplete, as it had left blank various important dates, and on that basis, the court declined to sign it. Although the proposed ex parte order of reference is not contained in the record, the court, in the order appealed from, acknowledged that it had been presented, and explained that the incompleteness of the supporting affidavit was the reason the proposed order was not signed.
[*2] More than five years then passed. In March 2015, the plaintiff, represented by new counsel, moved for an order of reference. [FN1] In April 2015, the motion was marked off the calendar of the Supreme Court’s Centralized Motion Part (here {**203 AD3d at 45} inafter CMP) without prejudice, as the motion had been erroneously made returnable on a date when the CMP was not open. [FN2] By notice of motion dated December 1, 2015, the plaintiff moved once again, inter alia, for an order of reference. [FN3] The plaintiff anticipatorily argued that any dismissal of the complaint pursuant to CPLR 3215 (c) would be unwarranted, for reasons that sought to excuse the lengthy delay in bringing the motion. That argument placed the question of a CPLR 3215 (c) dismissal squarely before the court. In its moving papers, the plaintiff made no reference to its presentment of the proposed ex parte order of reference in November 2009. The December 1, 2015 motion, among other things, for an order of reference was unopposed by Kerszko, consistent with his pattern of defaults. In an order entered February 10, 2016, the court denied the plaintiff’s motion and, sua sponte, directed dismissal of the complaint as abandoned pursuant to CPLR 3215 (c) and cancellation of the notice of pendency. In its order, the court directed dismissal of the complaint not only because it rejected the plaintiff’s “good cause” argument for the lateness of its motion, but also because, in its view, the presentation to the court of the proposed ex parte order of reference in November 2009, which the court refused to sign, did not qualify as a taking of proceedings for the entry of judgment pursuant to CPLR 3215 (c). The plaintiff appeals from the order entered February 10, 2016.
The plaintiff also moved in the Supreme Court to vacate the order entered February 10, 2016, arguing that the presentment of the proposed ex parte order of reference in November 2009, within one year after Kerszko’s default, rendered the abandonment provision of CPLR 3215 (c) inapplicable. [FN4] The court remained unpersuaded, and in an order entered January {**203 AD3d at 46} 18, 2017, denied the plaintiff’s motion to vacate the February 10, 2016 order. The plaintiff appealed from the order entered January 18, 2017, but that appeal was deemed dismissed for failure to perfect.
II. The Supreme Court’s CPLR 3215 (c) Dismissal Is Preserved and Appealable A threshold issue that needs to be addressed, as raised by our dissenting colleagues, is whether the plaintiff’s contention that the Supreme Court erred in directing dismissal of the complaint for reasons unrelated to those specifically argued in the motion papers before the court, is preserved and appealable. We conclude that the court’s reasoning, that the plaintiff’s presentment of an ex parte order to show cause, which the court refused to sign, did not qualify as a taking of proceedings for the entry of judgment pursuant to CPLR 3215 (c), is preserved and appealable under our precedent.
The plaintiff, in its moving papers submitted in support of its December 2015 motion, [*3] inter alia, for an order of reference, argued that it had “good cause” pursuant to CPLR 3215 (c) for seeking an order of reference as late as 2015. It is unclear how or why, given the nature of the arguments in the moving papers, the Supreme Court delved into the circumstances of the November 2009 proposed ex parte order of reference, and upon finding it infirm, directed dismissal of the complaint pursuant to CPLR 3215 (c) based on that infirmity. Likely, the court was aware of the history of this litigation from its own file, particularly as the court described in the order appealed from the specific reason for which the proposed ex parte order of reference had been rejected in November 2009. Our dissenting colleagues suggest that while “good cause shown” arguments included in the plaintiff’s moving papers are preserved and appealable, the court’s related sua sponte discussion of the proposed ex parte order of reference, under the same CPLR statute, is not preserved and is therefore not appealable. That construct, which parses the arguments of counsel from any different but related reasoning employed sua sponte by the court in its dispositive order, is not a reflection of our decisional law. Our colleagues cite no specific legal authority in support of their position. {**203 AD3d at 47} Indeed, our law holds just the opposite, as reflected by two opinions, Rosenblatt v St. George Health & Racquetball Assoc., LLC (119 AD3d 45 [2014, Leventhal, J.]), and Tirado v Miller (75 AD3d 153 [2010, Dillon, J.]). Tirado addressed the propriety of the Supreme Court’s granting of a motion to quash a subpoena and for a protective order after the filing of a note of issue for reasons that were not argued by the parties in their papers but raised sua sponte by the court . Rosenblatt addressed the denial of a motion for summary judgment where the Supreme Court sua sponte raised issues affecting the admissibility of the deposition transcripts proffered by the movant.
We held in Tirado that since the Supreme Court’s sua sponte reasoning for denying late discovery was not dispositive to the action, the court had the latitude to employ reasoning not argued by the parties, but which resolved the very branch of the motion that it was asked by the parties to decide ( see Tirado v Miller , 75 AD3d at 154). Comparatively, we held in Rosenblatt that the Supreme Court’s sua sponte reasoning finding deposition transcripts inadmissible for summary judgment purposes, which had not been argued by any of the parties among other summary judgment issues, was inappropriate because, unlike Tirado , the motion before the court was dispositive to the action ( see Rosenblatt v St. George Health & Racquetball Assoc., LLC , 119 AD3d at 54).
Here, the Supreme Court’s sua sponte reasoning, that the plaintiff’s proposed ex parte order of reference did not qualify as taking proceedings for the entry of judgment pursuant to CPLR 3215 (c), was the dispositive basis on which the court directed dismissal of the action—rendering the circumstances consistent with what occurred in Rosenblatt . The court employed CPLR 3215 (c) reasoning, never argued by the parties, to decide a CPLR 3215 (c) motion, just as in Rosenblatt , the court employed reasoning under CPLR 3212, which was never argued by the parties, to decide a CPLR 3212 summary judgment motion. Under the authority of either Rosenblatt or Tirado , the analysis and reasoning of the court, in the order appealed from, although sua sponte, self-preserved the issues for appellate review because it was pursuant to the same CPLR section within which the plaintiff’s motion was based and was dispositive to the action. In both actions, the sua sponte reasoning of the court was recognized and addressed by this Court on the merits. Due to the dispositive import of the motion, Rosenblatt is controlling to this appeal. It is only where a court {**203 AD3d at 48} acts wholly outside the parameters of the CPLR basis of a noticed motion, unlike here, where a sua sponte order or ruling is not subject to appeal as of right ( see CPLR 5701 [a] [2] [v]; Sholes v Meagher , 100 NY2d 333, 335 [2003]; Kwang Bok Yi v Open Karaoke Corp ., 161 AD3d 971 [2018]). CPLR 5701 (a) (2) (v) specifically confers upon parties the right to appeal from orders arising from noticed motions that affect a substantial right. Here, the plaintiff’s noticed motion directly implicated CPLR 3215 which the plaintiff actually argued in its papers, and resulted in an appealable order, as that order affected the most substantial right of all—the dismissal of its complaint ( see Rosenblatt v St. George Health & Racquetball Assoc., LLC , 119 AD3d at 54).
Similarly, because the Supreme Court’s dispositive sua sponte reasoning directly related to the plaintiff’s CPLR 3215 (c) arguments and is self-preserved and appealable under Rosenblatt , the motion the plaintiff later made to correct the court was necessarily in the nature of reargument ( see id. § 2221 [d]) rather than vacatur ( see id. § 5015). The significance of the difference between reargument and vacatur becomes relevant later in this opinion, in the discussion of Bray v Cox.
[*4] Sholes v Meagher (100 NY2d 333 [2003]), which the dissent relies upon to reach a contrary conclusion about preservation, is inapplicable. In Sholes , the Supreme Court rendered a sua sponte order that was not a product of a noticed motion, whereas here, the court’s sua sponte reasoning emanated from a noticed motion and related directly to the general CPLR 3215 (c) issues that were anticipatorily raised in the plaintiff’s moving papers.
[1] For these reasons, we conclude that the arguments raised on appeal by the plaintiff regarding the proposed ex parte order of reference and CPLR 3215 (c) are preserved for our consideration, appealable, and should be reached on the merits. Although it is our view that the portion of the order which was made sua sponte does not require leave to appeal, since a majority of the Justices on this panel have concluded that leave is required, we are constrained to grant leave to address the merits of this appeal.
III. Taking Proceedings for the Entry of Judgment Pursuant to CPLR 3215 (c) Since the plaintiff’s appellate arguments should be reached on appeal, we must address them on the merits. {**203 AD3d at 49} This Court frequently sees issues involving CPLR 3215 (c), oftentimes in the area of residential mortgage foreclosure litigation. The statute provides that if a plaintiff fails to “take proceedings” for the entry of judgment within one year after a defendant’s default, the court shall not enter judgment, but shall dismiss the complaint as abandoned. The one-year statutory time frame is not one year from the commencement of the action, but one year from when the defendant’s answer or responsive motion was due, which itself is measured from when service is deemed complete. The one-year deadline is computed from the date of a defendant’s default, but is tolled in residential mortgage foreclosure actions during the pendency of mandatory CPLR 3408 settlement conferences ( see U.S. Bank N.A. v Penate , 176 AD3d 758 , 760 [2019]; HSBC Bank USA, N.A. v Seidner , 159 AD3d 1035 , 1036 [2018]; U.S. Bank, N.A. v Dorvelus , 140 AD3d 850 , 852 [2016]). Therefore, the statutory one-year period of CPLR 3215 (c) may potentially be many weeks, and perhaps months, longer than a year after default, depending on the circumstances of the action.
CPLR 3215 (c) employs mandatory language, that the court “shall” dismiss a complaint as abandoned, either as a result of a motion or at the court’s own initiative, where proceedings have not been taken within one year after a defendant’s default or as necessarily extended by a CPLR 3408 toll. The mandatory language of the statute is subject to the exception that dismissal is not warranted where there is “sufficient cause shown” as to why the complaint should not be dismissed. In order to demonstrate “sufficient cause shown,” a plaintiff is required to demonstrate that there was a reasonable excuse for the delay in taking proceedings for the entry of judgment and that there exists a potentially meritorious cause of action ( see BAC Home Loans Servicing, L.P. v Kirnon , 184 AD3d 547 [2020]; Federal Natl. Mtge. Assn. v Greenfeld , 183 AD3d 658 [2020]; Wells Fargo Bank, NA v McKenzie , 183 AD3d 574 [2020]; Flushing Bank v Sabi , 182 AD3d 582 [2020]).
That all said, the dismissal provisions of CPLR 3215 (c) are not implicated in any action where the plaintiff “take[s] proceedings” for the entry of judgment within one year after a defendant’s default. Where proceedings are taken within the statutory one-year period, any delays occasioned in the prosecution of the action beyond that year are irrelevant to CPLR 3215 (c).
In residential mortgage foreclosure actions, dates are often easily discernible in determining whether a plaintiff has taken {**203 AD3d at 50} proceedings within one year after a defendant’s default. Depending upon the manner that process was served, the date of a defendant’s default is computed by adding 20 or 30 days from the date that service is deemed complete ( see id. § 320 [a]). Adding a year to the date of default is also a simple calculation. During the operative year, the plaintiff will typically “take proceedings” by presenting a proposed order of reference by moving on notice or by order to show cause, or fail to do so. The trial court and appellate records reflect the date of any such motions which either fall within or without the relevant one-year time frame.
Here, Kerszko was served with process in or about March 2009 under CPLR 308 (2), meaning that his answer became due in or about April 2009. The one-year window for the plaintiff to take proceedings closed in or about April 2010, not including any toll for the parties’ mandatory CPLR 3408 settlement conference. The plaintiff presented its proposed ex parte order of reference to the Supreme Court in November 2009, months before the closure of the one-year period for taking proceedings pursuant to CPLR 3215 (c).
The term “take proceedings” is unique to CPLR 3215 (c), as it is not found in any other provision of the CPLR. If the state legislature had intended for the taking of proceedings to strictly require the “filing” or the “service” of a motion or order to show cause, it could have easily [*5] and cleanly written such language into the statute, but did not do so. Indeed, it would have made no sense for the legislature to define the taking of proceedings as the “service” of a motion ( see CPLR 2211), as motions for leave to enter a default judgment in residential mortgage foreclosure actions pursuant to RPAPL 1321 (1) may be made ex parte ( see Polish Natl. Alliance of Brooklyn v White Eagle Hall Co. , 98 AD2d 400, 403 [1983]). Similarly, if the state legislature had intended to restrict “taking proceedings” to formal motion practice only, it could have said so as well. To “take proceedings” is a broader and more encompassing concept than a more tightly defined “filing” or “service” of a motion for leave to enter a default judgment or other type of motion.
Indeed, this Department has a long and established line of cases defining how the term “take proceedings” under CPLR 3215 (c) should be construed. Our Court has consistently held that a plaintiff has not abandoned an action if, within one year after the defendant’s default, the plaintiff has manifested an intent not to abandon the case, but to take steps to seek a {**203 AD3d at 51} judgment ( see U.S. Bank, N.A. v Duran , 174 AD3d 768 , 770 [2019]; Wells Fargo Bank, N.A. v Mayen , 155 AD3d 811 , 813 [2017]; HSBC Bank USA, N.A. v Hasis , 154 AD3d 832 , 833 [2017]; Wells Fargo Bank, N.A. v Lilley , 154 AD3d 795 , 796 [2017]; Washington Mut. Bank, FA v Milford-Jean-Gille , 153 AD3d 754 , 755 [2017]; State of N.Y. Mtge. Agency v Linkenberg , 150 AD3d 1035 , 1037 [2017]; Wells Fargo Bank, N.A. v Daskal , 142 AD3d 1071 , 1073 [2016]; HSBC Bank USA, N.A. v Traore , 139 AD3d 1009 , 1010-1011 [2016]; Aurora Loan Servs., LLC v Gross , 139 AD3d 772 , 774 [2016]; US Bank N.A. v Dorestant , 131 AD3d 467 , 469 [2015]; Wells Fargo Bank, N.A. v Combs , 128 AD3d 812 , 813 [2015]; Jones v Fuentes , 103 AD3d 853 [2013]; Klein v St. Cyprian Props., Inc ., 100 AD3d 711 , 712 [2012]; Pisciotta v Lifestyle Designs, Inc ., 62 AD3d 850 , 852 [2009]; Icon Equip. Distribs. v Gordon Envtl. & Mech. Corp ., 272 AD2d 579 [2000]; Brown v Rosedale Nurseries , 259 AD2d 256, 257 [1999]; Home Sav. of Am., F.A. v Gkanios , 230 AD2d 770, 770-771 [1996]). It is not necessary for a plaintiff to actually obtain a judgment within one year after the default to avoid a CPLR 3215 (c) dismissal, so long as proceedings were undertaken to do so during the initial year after the defendant’s default ( see Wells Fargo Bank, N.A. v Combs , 128 AD3d 812 [2015]; Mortgage Elec. Registration Sys., Inc. v Smith , 111 AD3d 804 , 806 [2013]; Jones v Fuentes , 103 AD3d 853 [2013]; Nowicki v Sports World Promotions , 48 AD3d 435 , 436 [2008]). Proceedings are taken even if a timely motion for an order of reference is later withdrawn by the moving party ( see Aurora Loan Servs., LLC v Colleluori , 170 AD3d 1097 [2019]; Wells Fargo Bank, N.A. v Mayen , 155 AD3d at 812; HSBC Bank USA, N.A. v Traore , 139 AD3d at 1011; Banc of Am. Mtge. Capital Corp. v Hasan , 138 AD3d 903 , 904-905 [2016]; US Bank N.A. v Dorestant , 131 AD3d at 468; HSBC Bank USA, N.A. v Alexander , 124 AD3d 838 , 839 [2015]). Moreover, it does not matter if a plaintiff’s motion for leave to enter a default judgment is denied ( see Wells Fargo Bank, N.A. v Lilley , 154 AD3d at 796; Wells Fargo Bank, N.A. v Daskal , 142 AD3d at 1072). Consistent with the view of the First Department, it also does not matter if an order to show cause seeking leave to enter a default judgment is not signed by the court upon its presentment ( see Brown v Rosedale Nurseries , 259 AD2d at 257). The dissenters’ reliance on HSBC Mtge. Corp. v Hasan (186 AD3d 1495 [2020]) is misplaced as there, unlike here, there was no evidence that the application for an order of reference was ever {**203 AD3d at 52} filed, presented to any judge, or reviewed on the merits. The relevant inquiry, therefore, is not the form that an application takes when presented to the court or its result. Rather, it is the intent that can be inferred from an application presented to the court seeking to have the action “proceed,” inconsistent with that of an abandonment of the plaintiff’s claims.
[2] In this action, the plaintiff presented a proposed ex parte order of reference within the one-year statutory period. The fact that the Supreme Court rejected the order of reference as defective is beside the point, as the mere presentment of it established the plaintiff’s intent to proceed toward the entry of judgment and not to abandon the action ( see Deutsche Bank Natl. Trust Co. v Attard , 197 AD3d 619 [2021] [party took proceedings where a timely motion was denied for technical defects]). What matters is the intent manifested by the presentment of an application, not what specific form it took or how it was filed. That being the case, the court should not have sua sponte directed dismissal of the complaint pursuant to CPLR 3215 (c). That statute has no application under the facts and circumstances of this case, as the plaintiff presented an ex parte proposed order of reference within one year after Kerszko’s default.
IV. The Preclusionary Doctrine of Bray v Cox Is Not before Us on Appeal and, in Any Event, Is Inapplicable [3] The doctrine of Bray v Cox (38 NY2d 350 [1976]) holds that if a party’s appeal is dismissed for failure to perfect, any issue which was raised or could have been raised on that appeal generally may not be subsequently raised on an appeal of a later order or judgment ( see CPLR 5501 [a] [1]; Rubeo v National Grange Mut. Ins. Co. , 93 NY2d 750, 753 [1999]; Bray v Cox , 38 NY2d at 353; Schneider [*6] v Schneider , 16 AD3d 573 , 574 [2005]; Matter of Pirrone v Town of Wallkill , 6 AD3d 447 , 449 [2004]; Koehler v Town of Smithtown , 305 AD2d 550, 551 [2003]; Chemical Bank v Zisholtz , 227 AD2d 580 [1996]). Typically, the procedural posture for an application of the Bray v Cox doctrine involves a party losing on a motion, abandoning an appeal from the order determining the motion, and unsuccessfully moving for leave to reargue with respect to the motion or to vacate the order determining the motion, or losing at trial. Then, on an appeal from a later order or judgment, the party tries to raise an issue which could have been raised on the prior appeal ( e.g. Almonte v Western Beef, Inc ., 21 AD3d {**203 AD3d at 53} 516 , 516-517 [2005]). Here, while not dispositive, the sequence of events are reversed as this Court dismissed an appeal from the later January 18, 2017 order for failure to perfect, rather than the earlier February 10, 2016 order now on appeal.
The record on appeal makes no mention that after the Supreme Court directed dismissal of the complaint in the order appealed from, which was entered February 10, 2016, the plaintiff made what it styled as a motion to “vacate” that order. The court’s denial of that motion in the order entered January 18, 2017, is not before us on appeal. Although a notice of appeal was filed as to the order entered January 18, 2017, the appeal was deemed dismissed for failure to perfect. None of those additional facts are part of our appellate record. Such are the vicissitudes of an appeal where the defending party is in default from the inception of the litigation and not involved in shaping the record. While these facts are outside of the record, they are mentioned here, reluctantly, only because they are raised by our dissenting colleagues. Nevertheless, in our view, the instant appeal is not barred by application of the Bray v Cox doctrine.
Since the dismissal of the appeal from the order entered January 18, 2017, is dehors the record, it may only be considered if our Court were to, in effect, take judicial notice of it. As a general rule, the factual review power of the Appellate Division is confined to the content of the record compiled before the court of original instance and does not include matter dehors the record ( see CPLR 5526; Flagstar Bank, FSB v Titus , 120 AD3d 469 , 470 [2014]; Brandes Meat Corp. v Cromer , 146 AD2d 666, 667 [1989]). CPLR 4511 identifies circumstances where judicial notice may be taken sua sponte and other circumstances where it may not be taken absent notice to the parties and an opportunity to be heard.
Any dismissal of the plaintiff’s appeal from the January 18, 2017 order is reflected by a court-generated document. This Court has already held that ” a court should not take judicial notice of any court-generated document without affording the parties an opportunity to be heard on whether notice should be taken, and, if so, the significance of its content ” ( see Caffrey v North Arrow Abstract & Settlement Servs., Inc ., 160 AD3d 121 , 127 [2018] [emphasis added]). We are a stare decisis court. The obvious reason for Caffrey’ s perspicacious caution in taking judicial notice is the basic notion of due process that is owed to parties. Caffrey’ s caution is particularly important when a {**203 AD3d at 54} matter is on appeal where the decisions of our Court are almost always conclusive, whereas the mechanisms of the trial courts provide a better opportunity for issues to be raised and debated prior to the rendering of trial-level determinations. Here, the dissent misapplies Caffrey because the framed issue is not whether the prior dismissal order of this Court is of the type that may be judicially noticed, but is whether it may be judicially noticed without giving the parties an opportunity to be heard on it, as had occurred in Caffrey but which notice is absent here.
To reiterate, the applicability or inapplicability of the Bray v Cox doctrine is not before this Court on this appeal. This Department generally does not address issues that are not raised by parties in their appeals ( see Misicki v Caradonna , 12 NY3d 511 , 519 [2009]; Levin v State of New York , 32 AD3d 501 , 503 [2006]; Tammaro v County of Suffolk , 224 AD2d 406, 407 [1996]). The order entered January 18, 2017, and the dismissal of any appeal that arose from it, is not part of our record. No motion has been made by any party to dismiss the instant appeal on Bray v Cox grounds. No party has requested that Bray v Cox be among our legal considerations. Kerszko, in continuing default, makes no such arguments, as he did not file a brief on this appeal. Respectfully, our dissenting colleagues violate the precedential guidance of Caffrey on its expressed issue of requiring an opportunity to be heard. By so doing, they deprive the plaintiff of due process on whether judicial notice should be taken of the dismissal of the related appeal, and more importantly, whether the dismissal of that appeal even qualifies as an impediment under Bray v Cox . While the dissent cites cases for general non-controversial Bray v Cox propositions such as Xi Fang Temple v Hopetel, LLC (62 AD3d 865 [2009]) and Harry’s Nurses Registry, Inc. v Jen Kuo Chen (57 AD3d 733 [2008]), they cite to no decisional authority that we may take judicial notice of an order outside of the record without the parties having had an opportunity to be heard on our doing so. Caffrey says we must not. Our Court [*7] should avoid rendering dispositive legal conclusions in appeals regarding issues not raised by any party, based on matter dehors the record, where parties have no opportunity to be heard on our doing so, and in contravention of our precedent as expressly explained in Caffrey.
Even if judicial notice were to be taken of the dismissal of the appeal from the order entered January 18, 2017, the current {**203 AD3d at 55} appeal is not subject to dismissal under Bray v Cox . After the Supreme Court rendered the order entered February 10, 2016, directing dismissal of the complaint, the plaintiff made a motion which, while denominated as seeking to vacate the February 10, 2016 order, was actually a motion seeking leave to reargue its unopposed motion, inter alia, for an order of reference. The denial of a motion for leave to reargue is not appealable.
More specifically, the order that is not on appeal, entered January 18, 2017, is attached to the plaintiff’s own Request for Appellate Division Intervention form. The order describes the motion that it resolved. It summarized the plaintiff’s argument, “that plaintiff did not abandon the action, and CPLR 3215 (c) is inapplicable, because the plaintiff initiated the preliminary step in taking proceedings for the entry of a default judgment within one year of the default by submitting a proposed ex parte order of reference in 2009.” The Supreme Court denied the plaintiff’s motion, stating that “[t]his [c]ourt refers counsel to its [February 10, 2016] order in this regard.” Based on the court’s description of the moving papers, it is clear that the plaintiff’s argument, for all intents and purposes, was that the court had earlier misapprehended the relevant facts and misapplied controlling principles of law in directing dismissal of the action pursuant to CPLR 3215 (c)—an argument that is quintessentially in the nature of a CPLR 2221 (d) motion for leave to reargue. The court’s terse referral of the plaintiff to the reasoning contained in its earlier order is an unquestionable denial of leave to reargue.
It does not matter how a motion is titled by an attorney. What matters is what the motion actually is in substance ( see Istomin v Istomin , 130 AD3d 575 [2015]; Estate of Malik v New York City Hous. Auth. , 287 AD2d 435 [2001]; Onorato v Sangiovanni , 233 AD2d 427 [1996]; Nye v Dawes , 20 AD2d 680 [1964]). There are instances when attorneys inaccurately denominate a motion as one to vacate when in reality it is for leave to reargue ( e.g. Matter of Pasanella v Quinn , 167 AD3d 554 , 555 [2018]; Basile v Wiggs , 117 AD3d 766 [2014]), sometimes to circumvent the 30-day time limit that is imposed on motions for leave to reargue measured from the service of the order with notice of entry ( see CPLR 2221 [d] [3]). Since our colleagues in the dissent rely on matter outside the record to develop their Bray v Cox argument, we do not know whether the motion, which was made several months after the order appealed from, was styled {**203 AD3d at 56} as a motion to vacate to avoid its untimeliness if presented as a motion for leave to reargue. Indeed, the record is silent as to the date on which the order appealed from was served with notice of entry. This Court is not even in possession of a copy of the moving papers that the January 18, 2017 order addressed.
The distinction between a motion to vacate and a motion for leave to reargue is not esoteric, but important, because orders denying motions for leave to reargue are not appealable ( see Alvarez v Jawaid , 163 AD3d 746 , 748 [2018]; Humsted v New York City Health & Hosps. Corp. , 142 AD3d 1139 , 1140 [2016]; Cordero v Mirecle Cab Corp ., 51 AD3d 707 , 708 [2008]). Logically, no Bray v Cox issue can arise from the dismissal of an appeal where, as appears to be the case here, the related order was not itself appealable in the first instance. The purpose of Bray v Cox —that the dismissal of a prior appeal for lack of prosecution bars a subsequent appeal for issues that were, or could have been, raised in the prior appeal—has no applicability here. The plaintiff could not have obtained in the prior appeal any appellate review of the Supreme Court’s determination directing dismissal of the complaint because the order denying a motion for leave to reargue, from which that particular appeal arose, is not appealable.
The nature of the plaintiff’s motion as one for leave to reargue is highly significant in determining whether the later appellate dismissal is within, or without, the scope of Bray v Cox . This is all the more reason that it is inappropriate for our Court to take judicial notice of the dismissal of the prior appeal, where the plaintiff is deprived of its due process right to even be heard on the question of whether we should.
V. Conclusion The order is reversed, on the law, without costs or disbursements, and the plaintiff’s motion, inter alia, for an order of reference is granted. Although, as previously discussed, it is our view that the portion of the order which was made sua sponte does not require leave to appeal, since a majority of the Justices on this panel have concluded that leave is required, we are constrained to grant leave to address the merits of this appeal.
[*8].