Opinion
No. 2023-07224 Index No. 517949/19
10-09-2024
209 Barbey Street Trust, appellant, v. Izetta Anneka Scotland, defendant, 209 Barbey Street, LLC, respondent.
Richland & Falkowski, PLLC, Long Island City, NY (Michael Falkowski of counsel), for appellant. Angelyn D. Johnson & Associates, LLC (Alter & Barbaro, Brooklyn, NY [Bernard M. Alter], of counsel), for respondent.
Richland & Falkowski, PLLC, Long Island City, NY (Michael Falkowski of counsel), for appellant.
Angelyn D. Johnson & Associates, LLC (Alter & Barbaro, Brooklyn, NY [Bernard M. Alter], of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., JOSEPH J. MALTESE, LILLIAN WAN, LAURENCE L. LOVE, JJ.
DECISION & ORDER
In an action, inter alia, for specific performance of a contract for the sale of real property, the plaintiff appeals from an order of the Supreme Court, Kings County (Leon Ruchelsman, J.), dated June 29, 2023. The order, insofar as appealed from, in effect, granted that branch of the motion of the defendant 209 Barbey Street, LLC, which was pursuant to CPLR 3012(d) for leave to serve a late answer.
ORDERED that the order is affirmed insofar as appealed from, with costs.
On June 25, 2019, the plaintiff entered into a contract with the defendant Izetta Anneka Scotland whereby Scotland agreed to sell to the plaintiff residential property located in Brooklyn (hereinafter the subject premises). Scotland thereafter allegedly refused to convey the subject premises to the plaintiff. The plaintiff commenced this action against Scotland seeking specific performance of the contract. By deed dated September 27, 2019, Scotland transferred the subject premises to the defendant 209 Barbey Street, LLC (hereinafter the defendant buyer).
The plaintiff then moved, inter alia, for leave to amend the complaint to add the defendant buyer as a defendant. By order dated March 26, 2021, the Supreme Court granted the plaintiff's motion. The plaintiff served the defendant buyer on May 10, 2021, by delivering a copy of the supplemental summons and amended complaint to the office of the Secretary of State. In July 2021, the defendant buyer moved, among other things, pursuant to CPLR 3012(d) for leave to serve a late answer. In an order dated June 29, 2023, the Supreme Court, inter alia, in effect, granted that branch of the motion. The plaintiff appeals.
A motion pursuant to CPLR 3012(d) to extend the time to answer a complaint requires the movant to demonstrate "both a reasonable excuse for its delay and a potentially meritorious defense to the claims to which it is responding" (Bank of N.Y. Mellon v Norton, 219 A.D.3d 680, 682-683; see Moonachi, Inc. v U.S. Bank Trust, N.A., 213 A.D.3d 838, 838-839).
"The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court" (Citimortgage, Inc. v Kowalski, 130 A.D.3d 558, 558; see Goldstein v Ilaz, 206 A.D.3d 976, 976). "In making that discretionary determination, the court should consider relevant factors, such as the extent of the delay, prejudice or lack of prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits" (Moore v Day, 55 A.D.3d 803, 804; see Yongjie Xu v JJW Enters., Inc., 149 A.D.3d 1146, 1147).
Here, the record reflects that there was only a short delay in the defendant buyer answering the amended complaint, that there was no willfulness on the part of the defendant buyer, and that there would be no prejudice to the plaintiff (see Yongjie Xu v JJW Enters., Inc., 149 A.D.3d at 1147). Further, a potentially meritorious defense exists in that the defendant buyer may be a bona fide purchaser without notice of the plaintiff's claim, as the plaintiff failed to record its contract of sale (see Bello v Ouellette, 211 A.D.3d 784, 786; 139 Lefferts, LLC v Melendez, 156 A.D.3d 666, 667; Avila v Arsada Corp., 34 A.D.3d 609, 610). Under these circumstances, and given the public policy favoring the resolution of cases on their merits, the Supreme Court providently exercised its discretion in, in effect, granting that branch of the defendant buyer's motion which was pursuant to CPLR 3012(d) for leave to serve a late answer (see Bansi v Nugacon Bldg. Servs. LLC, 218 A.D.3d 723, 723-724).
The parties' remaining contentions are without merit.
BRATHWAITE NELSON, J.P., MALTESE, WAN and LOVE, JJ., concur.