           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

167
CA 16-00406
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


US BANK NATIONAL ASSOCIATION,
PLAINTIFF-APPELLANT,

                      V                           MEMORANDUM AND ORDER

PAUL SINAY, LINDA D. SINAY, LARRY GERAW AND
SHIRLEY L. MONTANA, DEFENDANTS-RESPONDENTS.


WOODS OVIATT GILMAN LLP, ROCHESTER (MICHAEL JABLONSKI OF COUNSEL), FOR
PLAINTIFF-APPELLANT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Onondaga County (James P. Murphy, J.), entered June 24, 2015.
The order and judgment, among other things, denied plaintiff’s motion
seeking to vacate an order and judgment entered on August 27, 2013.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously affirmed without costs.

     Memorandum: In this mortgage foreclosure action, plaintiff
appeals from an order and judgment that denied its motion seeking to
vacate an order and judgment entered on August 27, 2013, in which
Supreme Court sua sponte dismissed the complaint after plaintiff
missed a deadline set forth in a scheduling order to file an
application for an order of reference. Contrary to plaintiff’s
contention, the court did not abuse its discretion in denying the
motion inasmuch as plaintiff’s motion to vacate was brought
approximately 19 months after the August 27, 2013 dismissal order (see
generally Nash v Port Auth. of N.Y. & N.J., 22 NY3d 220, 225-226).




Entered:    February 3, 2017                    Frances E. Cafarell
                                                Clerk of the Court
