Upon the foregoing papers, the motion and cross-motion are determined in accordance with this Decision and Order as follows:

This case presents a question of statutory construction with significant consequences for foreclosure litigation in New York: whether the filing of a request for judicial intervention for purposes of convening a mandatory settlement conference-an act required before a defendant is in default-constitutes the "taking of proceedings for the entry of judgment after the default" within the meaning of CPLR 3215(c). It does not. The chronology built into the foreclosure- settlement-conference regime itself forecloses that proposition. Under 22 NYCRR 202.12-a(b)(l), the Request for Judicial Intervention ("RJI") for a settlement conference must be filed "at the same time as proof of service"; and under CPLR 3408(a)(1), proof of service must be filed within twenty days of service. In every foreclosure action subject to CPLR 3408 settlement conferences, therefore, the RJI must be filed before the defendant's time to answer has expired-before a default can occur as a matter of law. A procedural filing that the Legislature requires to necessarily precede the existence of default cannot, by definition, constitute a "proceeding" in furtherance of a post- default judgment within the meaning of a separate act of the Legislature. Moreover, the notion that the filing of an RJI constitutes the taking of proceedings cannot be reconciled with the Legislature's explicit command in CPLR 3215(d) that in cases concerning multiple defendants an "application to the court" is required.

CPLR 3215(c) demands diligent prosecution after default, not ministerial compliance [*2]with administrative prerequisites arising before it. The Legislature used mandatory language-"the court shall dismiss the complaint as abandoned"-and required courts to enforce that mandate even "upon [their] own initiative," thereby underscoring that the statute is a discipline, not a suggestion. A court rule adopted decades later to facilitate mortgage-settlement conferences cannot satisfy nor displace a statutory condition precedent enacted by the Legislature in 1962, nor can it transform a scheduling device into a judicial application for judgment.

The Second Department decision in Citimortgage, Inc. v Zaibak, 188 AD3d 982 [2d Dept 2020] and its progeny (see US. Bank NA. v Newson, 240 AD3d 821, 822 [2d Dept 2025]; US. Bank Tr. NA. v Nieves, 239 AD3d 1020, 1022 [2d Dept 2025]; US. Bank NA. v 63 Holiday Dr. Realty Corp., 230 AD3d 713, 714 [2d Dept 2024]; US Bank NA. v Jerriho-Cadogan, 224 AD3d 788, 790 [2d Dept 2024]) neither considered nor determined the specific arguments raised by defendant here why the filing of an RJ1� does not, as a matter of law, constitute "tak[ing] proceedings to enter judgment" within the meaning of CPLR 3215(c). Hence, the Court is not bound under stare decisis to apply Zaibak. Precedent is created only by express determinations made by an appellate court, not supposition by a party based on appellate court silence concerning arguments not raised.

Because plaintiff did not move for default judgment or otherwise apply for judicial relief in furtherance of the entry of judgment, within one year of the default, dismissal under CPLR 3215(c) is mandatory. The filing of an RJI does not satisfy CPLR 3215(c) as a matter of law. Accordingly, for the reasons that follow, Defendant's cross-motion is granted, and the complaint is dismissed pursuant to CPLR 3215(c). This conclusion follows not from judicial discretion, but from the Legislature's command.

Plaintiff commenced the instant action to foreclose a mortgage on June 26, 2023. NYSCEF Doc. No. 1. Defendant Ortego 40 Realty LLC ("Defendant") owned by the borrower Ortner, was served with process pursuant to Limited Liability Company Law 303 by delivery to the Secretary of State on September 7, 2023. NYSCEF Doc. No. 78.

The Defendant did not serve an answer. Plaintiff filed an RJI to request a settlement conference on September 22, 2023. NYSCEF Doc. Nos. 80-81. Plaintiff moved for, inter alia, a default judgment against the Defendant on December 9, 2024. NYSCEF Doc. No. 86. The Defendant cross-moved to dismiss under CPLR 3215(c), arguing that Plaintiff failed to take proceedings to enter judgment against the Defendant within one year of the Defendant's default. NYSCEF Doc. No. 114. Oral argument was heard on the motion and cross motion on September 3, 2025.

CPLR 3215(c) provides that "[i]f the 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 ... unless sufficient cause is shown why the complaint should not be dismissed." Plaintiff concedes that it did not move for a default judgment or order of reference within one year of the Defendant default. Plaintiff instead contends that under Citimortgage, Inc. v Zaibak, 188 AD3d 982 [2d Dept 2020] (hereinafter "Zaibak") and its progeny Plaintiff's filing of an RJI in September 2023 constituted "tak[ing] proceedings to enter judgment" within the meaning of CPLR 3215(c). For several distinct reasons as argued by defendant, each of which alone is per se sufficient, the Court disagrees.

First, Zaibak's logic collapses under the weight of the governing statutes and rules if read together as required, and combined require plaintiffs to file the RJI prior to the default. Under 22 NYCRR 202.12-a(b)(l), "the RJJ in a foreclosure action must be filed at the same time as proof of service of the summons and complaint." (emphasis added). And CPLR 3408(a)(l) mandates that proof of service in a foreclosure action "must be filed within twenty days of service. " (emphasis added). Thus, where service is made under CPLR 308(2) ("leave and mail") or 308(4) ("nail and mail"), service is not even complete until ten days after proof of service is filed (CPLR 308[2], [4]). Only after service is complete does the defendant's time to answer begin running (CPLR 320[a]).

Accordingly, in the overwhelming majority of foreclosure actions, the RJI must be filed before the defendant's time to answer has even begun to run - i.e., before a default can legally occur at all. And even in cases of personal delivery, CPLR 320(a) provides that an appearance is due "within twenty days after service," (CPLR 320(a)) whereas the RJI must be filed within that same window. Therefore, under all circumstances where CPLR 3408 conferencing applies,^[FN1] the RJI must precede the default. An act that the Legislature requires to takes place before a defendant is in default cannot simultaneously satisfy a separate statutory condition that applies after default. Thus, as a matter of statutory chronology, an RJI must be filed before the defendant is even in default and cannot constitute a "proceeding" taken "after default" within the meaning of CPLR 3215(c).

This timing reality is fatal to Zaibak 's construction. CPLR 3215(c) measures compliance from the moment of default forward, not from commencement. Each Department of the Appellate Division has applied this rule uniformly: "Plaintiffs' time in which to move for entry of judgment is measured from [the] default" (NYCTL 2017-A Trust v Heirs-at-Law of Ghiselli, 215 AD3d 427, 429 [1st Dept 2023]); US Bank NA. v DiGiovanni, 231 AD3d 1077, 1078 [2d Dept 2024] ("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"); US Bank, NA. v Reamer, 187 AD3d 1650, 1651 [4th Dept 2020]; PHH Mortg. Corp. v Davis, 111 AD3d 1110, 1113 [3d Dept 2013])

Zaibak inverts CPLR 3215(c) by treating a pre-default filing as compliance with a post-default statutory mandate. That is the opposite of harmonization. The Court of Appeals has explained the governing canons: "It is not the function of the court to declare one statute the victor over another if the statutes may be read together, without misdirecting the one, or breaking the spirit of the other". Matter of Goodman, 95 NY2d 15, 21 [2000]. And courts must "construe [related provisions] in a way that renders them internally compatible". Yatauro v Mangano, 17 NY3d 420,427 [2011].

The court rules themselves adopt this reconciliation principle: "The provisions of this Part shall be construed consistent with the Civil Practice Law and Rules (CPLR)" (22 NYCRR 202.1[d]).

Rather than "harmonize" CPLR §§ 3215 (c) and 3408-Zaibak and its progeny displaces one with the other. It allows a filing required before default to satisfy a statute that governs only after default, and in doing so Zaibak "misdirects" CPLR 3408 while it "breaks the spirit" of CPLR 3215 (c) (Goodman, 95 NY2d at 21). Zaibak's construction is therefore unsustainable. The logic of Zaibak results in the incongruous outcome that a plaintiff who deliberately violates CPLR 3408 and 22 NYCRR 202.12-a(b)(1) (by failing to timely file the RJI with the proofs of service) would occupy a better position with respect to CPLR 3215(c) than one who complied with the legal requirements. As such, this ministerial form - which, whenever applicable, is legally required to be filed prior to the accrual of any default - cannot constitute taking proceedings for the entry of judgment within a year after the default. The filing of an RJI cannot possibly constitute the "taking of proceedings" to enter judgment within one year after default. By operation of statute and rule, a foreclosure plaintiff is already obligated to file the RJI before the defendant's default occurs. If the plaintiff obeys the law and files when required, the filing precedes the default and is therefore legally irrelevant to any 2215(c)-abandonment analysis. And if the plaintiff withholds the RJI until after default, it has violated binding procedural requirements, and the Court cannot reward such calculated noncompliance by allowing the delinquent filing itself to supply the missing "proceedings" the statute demands. A party cannot convert its own breach of a mandatory filing obligation into a tolling device. Thus, because controlling authority required the RJI to be filed before default, its filing after default is not only untimely-it is legally incapable of constituting "proceedings for the entry of judgment" within the meaning of CPLR 3215(c). Any other construction would invert the statute, excuse violation of mandatory procedure, and incentivize the very defiance of law that 3215(c) was enacted to deter.

This statutory tension disappears once CPLR 3215(c) is construed the way every Department of the Appellate Division (including the Second Department, save for the aberrant Zaibak line of cases) has already construed it: the phrase "take proceedings" means a motion for judicial relief directed toward the entry of a default judgment, not the ministerial filing of an RJI. The First, Third, and Fourth Departments are uniform on this point - it is the filing of a motion for default judgment (or its foreclosure equivalent, a motion for an order of reference) within one year of default that constitutes the taking of proceedings within the meaning of CPLR 3215(c). See, e.g., Deutsche Bank Natl. Tr. Co. v Bakarey, 198 AD3d 718, 721 [2d Dept 2021] ("In a mortgage foreclosure action, a plaintiff satisfies the requirements of CPLR 3215 (c) when, within one year of a defendant's default, the plaintiff takes the preliminary step toward obtaining a default judgment of foreclosure and sale by moving ... for an order of reference pursuant to RPAPL 1321"); US Bank N.A. v Nunez, 190 AD3d 660, 661 [1st Dept 2021] ("where a plaintiff fails to move for a default judgment within a year of the defendant's default ... dismissal of the action is required"); see also US Bank, NA. v Reamer, 187 AD3d 1650, 1651 [4th Dept 2020]("Here, plaintiff failed to initiate proceedings for the entry of a default judgment within one year of the default, and indeed had not taken the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference within one year of the defendant's default" [internal quotation marks and citations omitted]); Bank of New York v Richards, 192 AD3d 1228 [3d Dept 2021].

This construction not only fits the statutory text of CPLR 3215(c) but is the only construction that harmonizes CPLR 3215(c) with CPLR 3408 and 22 NYCRR 202.12-a(b)(l) without "misdirecting the one or breaking the spirit of the other" (Matter of Goodman, 95 NY2d [*3]15, 21 [2000]). It preserves the Legislature's command that CPLR 3215(c) be triggered after default, rather than displaced by a filing required before default, and it conforms to the principle that "courts must harmonize the various provisions of related statutes and ... construe them in a way that renders them internally compatible" (Yatauro, 17 NY3d at 427 [2011]). Treating an RJI as "taking proceedings" would do the opposite - it would require courts to read CPLR 3408 and 22 NYCRR 202.12-a in a manner that destroys the operative command of CPLR 3215(c). There is only one reading that harmonizes all three provisions. The RJI is the administrative trigger for settlement conferences (filed before default). A motion for default judgment is the act of prosecution required after default. CPLR 3215(c) is satisfied only by the latter, not the former.

Second, Zaibak 's rule is irreconcilable with the Legislature's express command in CPLR 3215(d). That subdivision governs multi-defendant actions and provides that where one defendant answers and another defaults, the plaintiff must make "an application to the court" "within one year of the default" before a default can be taken against the non-appearing party (CPLR 3215[d]). The statutory text leaves no doubt that the Legislature required a judicial application - not a ministerial filing such as an RJI - to qualify as the "tak[ing] of proceedings." By requiring "an application to the court", the Legislature plainly intended proceedings beyond the mere filing of a request for judicial intervention to satisfy the statutory requirement of the timely taking of proceedings for the entry of a default judgment.

If the mere filing of an RJI were sufficient to satisfy CPLR 3215(c), then the Legislature's explicit requirement in subdivision (d) of "an application to the court" would be rendered entirely superfluous. The law does not tolerate such reading. The Court of Appeals has made clear that where the Legislature prescribes a procedural step, courts may not treat that directive as optional: "Having prescribed the method, the Legislature has ordained the required procedure, for otherwise the statute would serve no purpose and we may not ascribe to the Legislature a vain act." Matter of Petrella v Siegel, 73 NY2d 846, 848 [1988].

Zaibak's interpretation does exactly what Petrella forbids - it drains CPLR 3215(d) of all operative meaning by treating a pre-default, administrative filing as the equivalent of the "application to the court" the Legislature expressly required. Put differently, if an RJI were enough, subdivision (d) would not exist.

The Legislature knew how to authorize satisfaction of CPLR 3215(c) and (d) by administrative filing if it had wished to do so; it did not. See Matter of Orens v Novello, 99 NY2d 180, 189 [2002]. Instead, it chose an application to the court in furtherance of the entry of judgment. Zaibak and its progeny rewrites the statute by eliminating the Legislature's chosen noun - "application" - and replacing it with "paperwork." That is not construction; it is amendment. Under CPLR 3215(d), the Legislature itself resolves the issue: "application to the court" means an actual submission for judicial relief, not the mechanical filing of a request for calendaring of a settlement conference. A Court must harmonize subdivisions (c) and (d), not collapse them. See Matter of Goodman, 95 NY2d 15, 21 [2000].

Third, the judicial settlement conference regime was created after CPLR 3215(c) and cannot be read back into it. CPLR 3215(c) dates to 1962 (L.1962, c. 308). The foreclosure-RJI regime (22 NYCRR § 202.12-a) was created decades later, after the 2008 foreclosure crisis, and [*4]serves a wholly different statutory objective: loss-mitigation, not the entry of judgment. Hence, a settlement-conference RJI cannot constitute "tak[ing] proceedings for the entry of judgment" within the meaning of CPLR 3215(c) for a fundamental threshold reason: when CPLR 3215(c) was enacted in 1962 (L. 1962, ch 308), the Legislature had not yet created-nor even contemplated-the mandatory settlement-conference procedure codified decades later in 22 NYCRR 202.12-a. A later-adopted court rule cannot possibly retroactively redefine a statutory term (and the intent of the legislature in enacting it) that predates it. The Legislature designed CPLR 3215(c) to require post-default prosecutorial action for the entry of a judgment, not a ministerial administrative filing created years later for a wholly different purpose.

Additionally, as the Court of Appeals has repeatedly instructed, a court rule cannot abridge or expand a statutory deadline. See People v Ramos, 85 NY2d 678, 687-88 [1995] ("no court rule can enlarge or abridge rights conferred by statute, and this bars the imposition of additional procedural hurdles that impair statutory remedies"). Treating the RJI as a "proceeding for the entry of judgment" would do exactly that-functionally tolling the one-year abandonment statute by court rule-something no court has authority to do. See Gonzales, 215 AD3d 636 [2d Dept 2023]. The Appellate Division has made this explicit: "to engraft exceptions where none exist is a trespass by a court upon the legislative domain". Stegemann v Rensselaer County Sheriffs Off, 153 AD3d 1053, 1054 [3d Dept 2017]. A procedural filing created by court administrators cannot override a legislative deadline enacted by statute. See Gonzales, supra. The displacement of a statutory condition precedent by a judicially promulgated or administratively required rule is not interpretation - it is legislation by judicial fiat, which courts have no power to undertake.

Fourth, ministerial steps, clerical filings, or activities that do not seek adjudication are not "proceedings" for judgment. They do not result in the entry of judgment and do not call upon the court to determine anything. A request for judicial intervention to trigger a settlement conference is a case-management mechanism. It compels no finding, requests no judicial ruling, and seeks no judgment. It does not ask the court to grant relief; it asks only that the court convene a conference to explore settlement prospects. It is a predicate to negotiation-not adjudication.^[FN2] The [*5][*6]statute does not call simply for "activity"; it calls for proceedings for the entry of judgment. A "proceeding" within the meaning of CPLR 3215(c) is an adjudicatory act-one that invokes the court's authority to determine rights or grant judicial relief. Examples include a motion for default judgment, a motion for an order of reference, or any application placing before the court a request to exercise judicial power toward the "entry of Judgment".

CPLR 3215(c) provides that where a plaintiff "fails to take proceedings for the entry of judgment within one year after the default," the court "shall dismiss the complaint as abandoned," absent a showing of sufficient cause. This language is mandatory, not permissive. The statute reflects a legislative judgment that dormant claims should not be kept alive indefinitely and that plaintiffs bear the responsibility to prosecute their actions diligently.

In enacting CPLR 3215(c), the Legislature chose mandatory language-"shall dismiss"- and did not authorize judicial drifts to excuse or overlook noncompliance. Statutory time limits reflect legislative constraint, not judicial flexibility. As the Court of Appeals has repeatedly held, "statutory time frames ... are not options, they are requirements" (Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726-27 [2004]).

CPLR 3215(c) is not discretionary. By its plain text, the Legislature used the mandatory verb "shall". "the court shall not enter judgment and shall dismiss the complaint as abandoned" unless the plaintiff takes proceedings for the entry of judgment within one year of the default or shows sufficient cause. Mandatory language forecloses equitable or implied exceptions. As the Court of Appeals has made clear, where the Legislature has employed the word 'shall', (let alone where, as here, the term "shall" is used twice), the duty is absolute. See People v Ricken, 29 AD2d 192, 193 [3d Dept 1968], ajfd 27 NY2d 923 [1970]. "Where, as here, a party moving for a default judgment beyond one year from the date of default fails to address any reasonable excuse for its untimeliness, courts may not excuse the lateness and "shall" dismiss the claim pursuant to CPLR 3215 (c) (see County of Nassau v Chmela, 45 AD3d at 722 [2007]; Keyes v McLaughlin, 49 AD2d 974 [1975]; Di Carlo v Bravo Tours, 129 AD2d 552 [1987]; Perricone v City of New York, 96 AD2d 531, 532 [1983], affd 62 NY2d 661 [1984]; Shepard v St. Agnes Hosp., 86 AD2d 628, 630 [1982])". Giglio v NTIMP, Inc., 86 AD3d 301,309 [2d Dept 2011] (Dillon, J.P.).

CPLR 3215(c) serves a deliberate disciplining function: it furthers the general policy of this State that litigation be diligently prosecuted. See Bill Jacket Supplement, Laws 1962, chapter 308, CPLR 3215(c), Thirteenth Annual Report of The Judicial Council of the State of [*7]New York, at 221 ("Public policy demands not only that actions be instituted seasonably but also that they be prosecuted with diligence and brought to a close within a reasonable time and in an orderly manner"). The Legislature crafted this rule precisely to prevent plaintiffs from sitting idle after a defendant has defaulted, allowing stale claims to linger in perpetuity without entry of judgment See Bill Jacket Supplement, Laws 1962, chapter 308, CPLR 32 l 5(c), Thirteenth Annual Report of The Judicial Council of the State of New York, at 216 ("The policy of repose underlying the statute of limitations would be defeated if a plaintiff were permitted to postpone action in a default case and thus create an indefinite hiatus in proceedings"). It is a statute about movement toward entry of judgment, not mere maintenance of the action in suspended animation. See Bill Jacket Supplement, Laws 1962, chapter 308, CPLR 3215(c), 1957 Report of the Temporary Commission on the Courts at 97 (noting section was "intended to prevent plaintiffs from unreasonably delaying the termination of an action"),

Because the statute's purpose is to compel diligence in prosecuting actions to judgment, with the attendant benefit of clearing court backlogs, its effect necessarily evaporates if courts begin carving out judicial exceptions based on sympathetic facts, administrative filings, or post- default settlement procedures. A statute cannot accomplish its design if courts undermine the very condition the Legislature chose to enforce timely pursuit of default judgment. Once courts begin accepting anything less than the taking of proceedings to obtain a judgment, they are not "construing" the statute-they are rewriting it.

The Legislature selected a bright-line rule because bright lines deter delay. Allowing plaintiffs to satisfy CPLR 3215(c) through collateral acts-whether administrative filings, RJis, or generic docket activity-would "fritter away" the statute's force and transform a mandatory discipline into a paper tiger. The Legislature could have written a permissive standard; it did not. It enacted a mandatory dismissal rule keyed to plaintiff's diligence in seeking the entry of judgment.

The judicial system is overrun by foreclosures laying fallow on its dockets, "with the strain on judicial resources ultimately being subsidized by New York taxpayers". Senate Introducer's Mem in Support of2022 NY Senate Bill S5473D at 4. Most of these pending cases are on default and a significant amount were abandoned long ago via the plaintiff's inaction. To prevent backlog, the Legislature enacted the abandonment rule of CPLR § 3215 (c) to direct dismissals, sua sponte and by default (Nevling v Chrysler Corp., 206 AD2d 221, 225 [2d Dept 1994]). The interdiction of stale, cases is a legitimate legislative objective. See Sun Oil Co. v Wortman, 486 US 717, 730 [1988] ("A State's interest in regulating the workload of its courts and determining when a claim is too stale to be adjudicated certainly suffices to give it legislative jurisdiction to control the remedies available in its courts by imposing statutes of limitations"). Yet foreclosure decisions reveal a stubborn reluctance to enforce the rule as intended.

In short: the statute is deliberately sharp-edged. It exists because some litigants would otherwise allow defaulted claims to drift indefinitely, clogging court dockets. To judicially soften or dilute this requirement is to defeat the Legislature's chosen means of enforcing expeditious prosecution. CPLR 3215(c) is not a technicality-it is a command.

Zaibak and its progeny are not precedentially dispositive under stare decisis because Zaibak neither raised nor considered the specific questions presented here. Zaibak did not [*8]address (1) the statutory chronology under CPLR 3408 and 22 NYCRR 202.12-a and whether a step legally required to occur prior to the default can constitute a "proceeding" taken thereafter; (2) whether its holding reconciles with CPLR 3215(d); (3) whether the Legislature designed the abandonment law to be obviated by a ministerial calendaring tool created decades later by court rule; (4) whether an administrative or clerical filing that seeks no adjudication of any issue related to the merits of the case constitutes taking proceedings for the entry of judgment; make proceeding for a judgment. These express questions were never litigated, briefed, or analyzed in that decision. Stare decisis governs only those issues actually considered and decided, not unstated assumptions. See Hoffmann v New York State Ind. Redistricting Commn., 41 NY3d 341, 368 [2023] (prior decision was not stare decisis where it was "silent as to" the specific argument raised in later action, "does not discuss any interpretation of [statute raised in later action]", and no party advanced any argument about [later raised statute's] meaning"). A decision cannot bind later courts on a point it never confronted.

The Court of Appeals has consistently rejected the notion that a court's unexamined inference transforms into rule of law. As Hoffmann explains, "a court is not 'derelict' for failing to address an argument no one advanced," and silence on a point cannot supply a holding where none was made. Id. at 368. That is precisely the posture of Zaibak and its progeny as it relates to the arguments raised by defendant here.

This is not a novel proposition; rather it is confirmed by the Second Department's own recent jurisprudence including Zaibak itself. In U.S. Bank NA. v. DiGiovanni, 23 l AD3d 1077, 1078 [2d Dept 2024], the Court held that the filing of an RJI requesting settlement-conferences did not defeat dismissal for abandonment because it was filed before the defendant's default. It was precisely because the party made the argument that under the unambiguous language of CPLR 3215(c) the proceedings must take place after the default. Notwithstanding the same facts being present in Zaibak, as the RJI in Zaibak was filed on February 3, 2015, six days before the defendant's February 9, 2015 default. Nevertheless, the Second Department correctly declined to treat Zaibak as controlling in DiGiovanni because the parties in Zaibak never addressed the legal significance of an RJI. filed before the default. The same analytic structure appears again in Fed. Nat 'l Mtge. Ass 'n v. Bandhu, 239 AD3d 708, 71 0 [2d Dept 2025), confirming that an RJI filed prior to default cannot cure abandonment and does not constitute "proceedings" under CPLR 3215(c). Rather than undermining this conclusion, Zaibak reinforces it: That the parties' arguments in a case controls the disposition of the case.

A court is bound by stare decisis only to the extent the prior appellate decision actually considered and decided the precise legal question later raised. If a proposition was not analyzed, there is no binding holding with respect to that question. Compare Colonial City Traction Co. v Kingston City R. Co., 154 NY 493,495 [1897] ("It was not our intention to decide any case but the one before us ... and our opinion should be read in the light of that purpose") with Misicki v Caradonna, 12 NY3d 511, 519 [2009] ("We are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made").

Stare decisis does not extend by speculation to points a prior court might hypothetically have reached had the question been presented. New York jurisprudence has never recognized sub silentio precedent. More than a century ago, the Court of Appeals held that "[a] judicial opinion must be read as applicable only to the facts involved, and is an authority only for what is actually decided." Rolfe v Hewitt, 227 NY 486, 494 [1920]. That principle has been repeatedly [*9]reaffirmed. In Matter of Empire Ctr. for N.Y State Policy v New York State Teachers 'Retirement Sys., the Court of Appeals reiterated that its prior rulings are not "to be read as deciding questions that were not before us and that we did not consider" (23 NY3d 438,446 [2014]).

Thus, because Zaibak never addressed these questions, it cannot control here. Where, as here, an opinion is silent on the interpretive question subsequently presented, it is not binding authority at all. See Hoffmann, 41 NY3d at 368 ("issues that have never been addressed nor squarely decided certainly cannot bind future courts"). A proposition not actually decided cannot constrain subsequent courts See id. (stare decisis inapplicable to argument which "no party in [prior action] raised and as to which [prior decision} is silent").

Accordingly, Zaibak and its progeny is not stare decisis and cannot preempt the Court's obligation to dete1mine the dispositive arguments raised by Defendant herein, given that such issues were neither raised nor examined in Zaibak. For the reasons set forth above, the Court finds Plaintiff's reliance on Zaibak misplaced.

Any contentions not raised by the parties are not being considered herein.^[FN3]

Because plaintiff did not move for default judgment within one year of the default, and because the filing of an RJI does not satisfy CPLR 3215(c), dismissal is mandatory. And because Zaibak did not consider, much less reject, the arguments presented here-arguments arising from the interplay of CPLR 3215(c), CPLR 3215(d), and CPLR 3408 and the proper province of court rules as they relate to statutes-this Court is not bound to follow it.

The judiciary does not possess the authority to dilute or recast statutory text in the name of practicality or convenience. The Legislature imposed a bright-line rule: a plaintiff must move toward judgment. The courts may not substitute case-management filings for actual proceedings simply because they occur near the one-year deadline.

Respect for the separation of powers requires adherence to the rule as written. So too does the legitimacy of judicial precedent: stare decisis protects law actually rendered, not assumptions imputed to silence. The cross-motion is granted; the complaint is dismissed pursuant to CPLR 3215(c); and the notice of pendency [NYSCEF Doc. No. 4] is cancelled (see CPLR 6514(a); Bayview Loan Servicing, LLC v Starr-Klein, 193 AD3d 807 [2d Dept 2021]).

Accordingly, it is hereby

ORDERED, that plaintiff's motion is DENIED; and it is further

ORDERED, that the complaint is dismissed pursuant to CPLR 321S(c); and it further

ORDERED, that the Clerk is directed to cancel Notice of Pendency filed on June 26, 2023.

ORDERED, that cross-motion is GRANTED

This constitutes the decision and order of the Court.