Opinion
16042 Index No. 29219/19E Case No. 2021–04640
05-31-2022
MAJADA INC., Plaintiff–Appellant, v. E&A RE CAPITAL CORP., Defendant–Respondent, Giselle Gilman et al., Defendants.
Fadullon Dizon Krul, LLP, Jericho (Juan Paolo Dizon and Alexander Krul of counsel), for appellant. Shiryak, Bowman, Anderson, Gill & Kadochnikov, LLP, Kew Gardens (Matthew J. Routh of counsel), for respondent.
Fadullon Dizon Krul, LLP, Jericho (Juan Paolo Dizon and Alexander Krul of counsel), for appellant.
Shiryak, Bowman, Anderson, Gill & Kadochnikov, LLP, Kew Gardens (Matthew J. Routh of counsel), for respondent.
Webber, J.P., Kern, Oing, Scarpulla, Pitt, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered December 14, 2021, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for a default judgment against E & A RE Capital Corp., and granted E & A's cross motion to the extent of vacating its default in answering the complaint and deeming the answer timely served nunc pro tunc and dismissing the action if plaintiff failed to join Yuanqing Liu and NYC Happy Housing LLC as defendants within 90 days, unanimously reversed, on the law, without costs, the motion granted, and the cross motion denied. The Clerk is directed to enter judgment accordingly.
Supreme Court should have denied E & A's cross motion insofar as it sought to compel plaintiff to accept its untimely answer, as E & A failed to show a reasonable excuse for its default in serving the answer ( CPLR 3012[d] ; see Nouveau El. Indus., Inc. v. Tracey Towers Hous. Co., 95 A.D.3d 616, 618, 944 N.Y.S.2d 119 [1st Dept. 2012] ). E & A asserted that it did not receive the summons and complaint, which had been served on the Secretary of State, because it had failed to keep its address updated. However, where a defendant does not receive service of process because it failed to keep a current address on file with the Secretary of State, courts will not find a reasonable excuse for a default (see NYCTL 1999–1 Trust v. 114 Tenth Ave. Assoc., Inc., 44 A.D.3d 576, 577, 845 N.Y.S.2d 235 [1st Dept. 2007], appeal dismissed 10 N.Y.3d 757, 853 N.Y.S.2d 540, 883 N.E.2d 366 [2008], cert denied 555 U.S. 970, 129 S.Ct. 458, 172 L.Ed.2d 327 [2008] ; Associated Imports, Inc. v. Amiel Publ., Inc. 168 A.D.2d 354, 354, 562 N.Y.S.2d 678 [1st Dept. 1990], lv dismissed 77 N.Y.2d 873, 568 N.Y.S.2d 915, 571 N.E.2d 85 [1991] ). Similarly, the court should have granted plaintiff's motion for a default judgment against E & A, since E & A defaulted and plaintiff satisfied the requirements of CPLR 3215 (see Bank of N.Y. Mellon v. Steinwurzel, 189 A.D.3d 1527, 1528–1529, 140 N.Y.S.3d 111 [2d Dept. 2020] ; HSBC Bank USA, N.A. v. Simms, 163 A.D.3d 930, 933, 81 N.Y.S.3d 517 [2d Dept. 2018] ).
Furthermore, Supreme Court should have denied E & A's cross motion insofar as it sought to join as defendants Yuanqing Liu (who purchased the property from E & A) and NYC Happy Housing LLC (which purchased the property from Liu), as Liu and NYC Happy Housing are not necessary parties. On the contrary, Liu and NYC Happy Housing need not be joined to accord complete relief or to avoid an inequitable effect ( CPLR 1001[a] ); rather, they are "bound by all proceedings taken in the action ... to the same extent as a party" because their conveyances were recorded after the filing of the notice of pendency ( CPLR 6501 ; see JP Morgan Chase Bank, N.A. v. White, 182 A.D.3d 469, 470, 122 N.Y.S.3d 296 [1st Dept. 2020] ).