Opinion
5626/09.
Decided May 3, 2010.
Roach Bernard, Esq., Plaintiff Attorney, Lynbrook, NY.
Jaime D. Ezratty, Ezratty, Ezratty Levine, Attorney for Sherran Fields, Mineola, NY.
Jeffrey M. Schwartz, Esq., Attorney for C and C Homes, Inc., New Rochelle, NY.
Defendants, Stella Azie, Esq. and Stella Azie, P.C. [the Azie defendants], move pursuant to CPLR § 3211 [a][7] for an order dismissing the plaintiff's complaint for failure to state a cause of action and for an order staying discovery until the determination of the motion to dismiss.
Defendants, Kecia J. Weaver and Kecia J. Weaver, P.C. [the Weaver defendants], move pursuant to CPLR § 3211(a)(5) and (a)(7) for an order dismissing the plaintiff's complaint.
Plaintiff, Grace Marjorie Scott, moves pursuant to CPLR § 3215 for an order granting a judgment by default against defendants Sherran Fields, Select Development Group, LLC., Foreclosure Options, Inc., and Moses Crawford and for an order pursuant to CPLR § 3025(b) granting leave to amend the complaint to add an additional cause of action against all of the named defendants herein. She further opposes defendants' applications.
It is alleged herein, that up and until November 25, 2005, the plaintiff, Grace Marjorie Scott, was the owner in fee of the premises located at 418 Bayview Avenue, Inwood, New York. Commencing at some time in 2005, the plaintiff began to experience difficulties with making her monthly mortgage payments and was threatened with foreclosure of the subject premises. As a result of these financial difficulties, the plaintiff sought assistance in refinancing the subject property and, in or about June 2005, was introduced to defendant, Moses Crawford, by her daughter's mother-in-law. Defendant Crawford allegedly presented himself to the plaintiff as a "licensed real estate broker and/or financial specialist and/or mortgage broker of defendant Select Development and/or defendant Foreclosure Options and/or defendant C and C Homes." Defendant Crawford met with the plaintiff in her home on two occasions to discuss refinancing options and, for a time thereafter, the plaintiff states that she was in contact with and provided financial information to defendants Crawford, Select Development Group, LLC, Foreclosure Options, Inc. and C and C Homes, Inc.
On or about November 17, 2005, the plaintiff was allegedly contacted by a staff member of "Select Development, and/or Foreclosure Options and/or C and C Homes" and was informed that she had to attend a closing on November 25, 2005 at a location in the Bronx. The plaintiff states that on the date of the closing she was introduced for the first time to defendants Sherran Fields, Kecia Weaver, Esq., Stella Azie, Esq. and Joseph Wald. The plaintiff alleges that in the presence of all the named defendants herein, defendant, Moses Crawford, explained to her that Sherran Fields would be added to the title of the property so as to permit the new mortgage to be taken out in both of their names, but that she would remain on the title as the primary owner and Ms. Fields would be removed from the deed and the mortgage within three to six months thereafter. At the closing, Ms. Fields was represented by defendant, Stella Azie, Esq., and the plaintiff was represented by defendant, Kecia Weaver, Esq.
The plaintiff asserts that notwithstanding her belief that she was only to transfer 50% of the interest in her property, she was unknowingly caused to transfer 100% of the interest therein to defendant, Sherran Fields, and that such transfer was facilitated by the "help and guidance" of the above named defendants. The plaintiff acknowledges that she "did not read any agreement or document that [she] signed at the Closing, due in part to the fact that [she] trusted defendant Moses Crawford and did not think that he would do anything intentionally to hurt or harm me and because I relied upon the [sic] my attorney's knowledge and expertise and her representation that she reviewed all the documents and she was satisfied with them." The plaintiff further avers that defendant Sherran Fields was compensated in the sum of $10,000 for the use of her name and credit and agreed to transfer back to the plaintiff her interest in the subject property, but to date has failed to reconvey title thereto. The plaintiff acknowledges that at the closing she received a check in the sum of $75,657.86 and that the balance owing on her mortgage "was paid off in full" in the amount of $63,364.86.
Subsequent to the closing, the plaintiff remained on the subject premises allegedly paying the costs attendant thereto, including the mortgage, with the payments being remitted to the new lender, Option One Mortgage Company [hereinafter Option One]. On or about April 1, 2006, the plaintiff learned from Option One that she was no longer the owner of the subject property and rather defendant, Sherran Fields, was the titled owner thereon. Notwithstanding this information, the plaintiff continued to pay the mortgage on the subject premises until January 2008.
The underlying action was ultimately commenced by the plaintiff on March 25, 2009 and includes causes of action sounding in Conversion, Conspiracy, Fraud and Deceit, Quasi Contract, Breach of Fiduciary Duty and Negligence, the last two of which are alleged solely against defendant, Kecia J. Weaver, Esq. The within applications interposed by the Azie and Weaver defendants, as well as those submitted by the plaintiff thereafter ensued and are determined as set forth hereinafter.
In support of the application the moving defendants argue that the plaintiff's First cause of action sounding in conversion must be dismissed as they did not and have never owned or possessed the property at issue in the within action. The defendants additionally argue that cause of action must be dismissed as it was filed beyond the applicable three year statute of limitations period.
As to the Second cause of action sounding in conspiracy, the defendants argue that the plaintiff has failed to set forth specific factual allegations from which it can be inferred that the defendants entered into an agreement or understanding to collectively engage in a fraudulent scheme. With respect to the Third cause of action sounding in fraud, the moving defendants again contend that the plaintiff has failed to state same with sufficient particularity and that the allegations are asserted against all the individuals "globally", thus warranting dismissal thereof.
Finally, with respect to the Fourth cause of action alleging quasi contract, the defendants argue that a Residential Contract of Sale, executed by and between Ms. Scott and Ms. Fields, defeats the plaintiff's claim as to the existence of an implied contract and that any implied contract would violate the statute of frauds. The defendants assert that the contract of sale clearly provided that the plaintiff was to sell her property to defendant Fields and does not in any respect indicate an intention on the part of the plaintiff to buy back the subject property, thereby warranting dismissal of the Fourth cause of action.
The plaintiff opposes that application in its entirety.
On an application interposed pursuant to CPLR § 3211(a)(7), the complaint is to be liberally construed and the plaintiff afforded every favorable inference which may be drawn therefrom ( Leon v. Martinez , 84 NY2d 83, 638 NE2d 511, 614 NYS2d 972). The facts as alleged are to be accepted as true, although bare legal conclusions in addition to factual assertions which are squarely contradicted by the record are not entitled to any such consideration ( Doria v. Masucci , 230 AD2d 764, 646 NYS2d 363 (2d Dept., 1996); Mayer v. Sanders , 264 AD2d 827, 695 NYS2d 593 [2d Dept., 1999]). In entertaining such an application, the function of the motion court is only to determine whether the facts as alleged fall within a cognizable legal theory ( id. ). "In assessing a motion to dismiss under 3211(a)(7) . . . a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint" ( Leon v. Martinez, supra ). When an affidavit is presented for the court's review "the criterion is whether the proponent of a pleading has a cause of action, not whether he has stated one" ( Guggenheimer v. Ginzburg , 43 NY2d 268, 372 NE2d 17, 401 NYS2d 182).
In order to state a cause of action sounding in conversion, the plaintiff is required to establish legal ownership of a specific identifiable piece of property and [defendants] exercise of dominion over or interference with the property in defiance of plaintiff's rights ( Schwartz v. Sayah , ___ N.Y.S.2d ___, 2010 WL 1495424 [2d Dept., 2010]). However, a cause of action sounding in conversion will not lie where it is predicated upon the loss of real property ( Garelick v. Carmel , 141 AD2d 501, 529 NYS2d 126 (2d Dept., 1988); Boll v. Town of Kenderhook , 99 AD2d 878, 472 NYS2d 206 (3d Dept., 1984); Roemer and Featherstonhaugh, P. C. v. Featherstonhaugh , 267 AD2d 697, 699 NYS2d 603 [3d Dept., 1999]).
Inasmuch as the plaintiff's First cause of action sounding in conversion quite clearly involves the loss of the real property located at 418 Bayview Avenue, Inwood, New York, the action is accordingly dismissed.
It is well settled that there is no independent tort of civil conspiracy recognized in New York and such a claim may only be alleged to connect the actions of separate defendants with an actionable injury and to show these acts flowed from a common scheme or plan ( Schlotthauer v. Sanders , 153 AD2d 729, 545 NYS2d 196 (2d Dept., 1989); SRW Associates v. Bellport Beach Property Owners , 129 AD2d 328, 517 NYS2d 741 [2d Dept., 1987]). Accordingly, the Second cause of action is dismissed.
In order to allege a cause of action sounding in fraud the complaint must allege the following: the defendants made a material representation; the material representation was false; the defendants knew it was false and made it with the intention of deceiving the plaintiff; the plaintiff believed the representation to be true and justifiably acted in reliance thereon; and the plaintiff is damaged as a result thereof ( Small v. Lorillard Tobacco Co., Inc. , 94 NY2d 43, 720 NE2d 892, 698 NYS2d 615). CPLR § 3016(b) requires that a cause of action sounding in fraud be pled with factual specificity, however, where it is alleged that the particular circumstances of the purported fraud are within the exclusive knowledge of the defendants, the requirements for specificity are relaxed ( Pericon v. Ruck , 56 AD3d 635, 868 NYS2d 118 [2d Dept., 2008]).
The plaintiff's complaint alleges that on November 25, 2005, all of the defendants herein named "made certain material oral and/or written representations and statements regarding past and/or existing facts regarding the subject property which did not include matters of mere opinion" and that such representations were false and were used by the defendants to induce Ms. Scott into transferring 100% of her interest in the subject premises. Here, however, the plaintiff fails to allege, either in the pleading, or in the accompanying affidavit, exactly what misrepresentations were made to her by defendant, Stella Azie ( Small v. Lorillard Tobacco Co., Inc. , 94 NY2d 43 (1999), supra ; Jacobs v. Haber , 232 AD2d 372, 648 NYS2d 638 [2d Dept., 1996]). The Court notes that in opposing the application, counsel for the plaintiff argues that the facts surrounding the fraud are within the exclusive knowledge of the defendants. However, fully according as true the plaintiffs allegations as recited in the complaint, if indeed defendant Azie made representations and or statements to the plaintiff, which were later found to be untrue, the plaintiff would now know what statements were untrue so as to generally describe them either in her complaint or accompanying affidavit. Moreover, at the closing of the subject premises, defendant Azie represented Ms. Fields, and the plaintiff was separately represented by defendant Kecia Weaver, Esq. Thus, the plaintiff herein has failed to allege the existence of the type of relationship between herself and Ms. Azie, which would create a duty to disclose the facts alleged to have been concealed and misrepresented ( Jacobs v. Haber, supra ).
The Third cause of action sounding in Fraud and as asserted against the Azie defendants is hereby dismissed.
"The existence of a valid and enforceable contract governing a particular subject matter ordinarily precludes recovery in quasi contract for the events arising out of the same subject matter" ( Clark-Fitzpatrick Inc. v. Long Island R. Co. , 70 NY2d 382, 516 NE2d 190, 521 NYS2d 653). In the instant matter, there is in fact a "Residential Contract of Sale" governing the subject property forming the basis of the within dispute and which was executed on July 27, 2005.
In opposing the defendants' application, counsel for the plaintiff argues that said contract is "one of the main fruits of the fraud" allegedly perpetrated by all of the defendants herein named. Counsel additionally urges that said contract does not "accurately represent what the parties intended" and that as a result of the plaintiff having been "dispossessed" of 100% ownership in the subject premises, a quasi or constructive contract should be imposed upon such property, as well as upon the proceeds of the mortgage thereon.
In the instant matter, a careful review of the record reveals that while plaintiff acknowledges that she "did not read any agreement or document that [she] signed at the closing" she does not dispute that she signed the "Residential Contract of Sale", which was executed four months prior to the closing and before she met any of the named defendants, with the exception of defendant Crawford. Additionally, the terms of the contract quite clearly and unambiguously state on the first page thereof, that the plaintiff, Grace Scott, as "Seller" was conveying the subject premises located at 418 Bayview Avenue, Inwood, New York, to defendant, Sherran Fields "together with all buildings thereon."
An individual who signs a contract and is without any valid excuse for having failed to read the contents thereof, is "conclusively bound" by the terms therein contained ( Gillman v. Chase Manhattan Bank , 73 NY2d 1, 534 NE2d 824, 537 NYS2d 787). Additionally, any agreement by and between Ms. Scott and Ms. Fields, which provided that the latter would reconvey back to Ms. Scott her 50% interest in the subject premises, would have to have been reduced to a writing in order to satisfy the statute of frauds ( General Obligations Law § 5-703[2] ). Here, the plaintiff has failed to even allege the existence of such a writing or to produce same as documentary evidence. Accordingly, the plaintiffs Fourth cause of action sounding in Implied Contract is dismissed.
Based upon the foregoing, the plaintiff's complaint is dismissed in its entirety as against the Azie defendants and in consideration thereof the application interposed by said defendants seeking a stay of discovery pending the determination of the instant application is hereby denied as moot.
With respect to the application interposed by the Weaver defendants pursuant to CPLR § 3211 (a)(5) and (a)(7) for an order dismissing the plaintiff's complaint, a review of the complaint reveals that all six causes of action in the complaint are asserted against the moving Weaver defendants. However, in accordance with the reasons as articulated herein above, the plaintiff's causes of action sounding in conversion, conspiracy and implied contract are hereby dismissed and the Court accordingly turns to those causes of action sounding in Fraud, Breach of Fiduciary Duty and Negligence.
As noted above, the plaintiff alleges that on November 25, 2005, all the defendants, including Kecia Weaver, "made certain material oral and/or written representations and statements regarding past and/or existing facts regarding the subject property which did not include matters of mere opinion," which caused her to unknowingly transfer 100% of her interest in the subject property. However, as is the case with the Azie defendants, there are no allegations, either in the complaint or in the supporting affidavit, with respect to the specific misrepresentations purportedly made by defendant, Kecia Weaver ( Daly v. Kochanowicz , 67 AD3d 78, 884 NYS2d 144 [2d Dept., 2009]). Moreover, as adduced from the plaintiffs' affidavit, it was only defendant, Moses Crawford, who allegedly explained to her that Ms. Fields would be added to the title of the property so as to permit the new mortgage, but whose name would be removed from the deed and the mortgage within three to six months thereafter.
Thus, the conclusory allegations as asserted against defendant, Kecia Weaver, are insufficient to satisfy the stringent pleading requirements for an action sounding in fraud and accordingly, the fraud cause of action is hereby dismissed ( id. ; Dumas v. Fiorito , 13 AD3d 332, 786 NYS2d 106 [2d Dept., 2004]; CPLR § 3016[b] ).
In order to establish a cause of action sounding in breach of fiduciary duty, the plaintiff is required to establish the existence of a fiduciary relationship, misconduct by the defendant and damages, which directly flowed from such misconduct ( Kurtzman v. Bergstol , 40 AD3d 588, 835 NYS2d 644 (2d Dept., 2007); Ozelkan v. Tyree Bros. Environmental Services, Inc. , 29 AD3d 877, 815 NYS2d 265 [2d Dept., 2006]). As extrapolated from the complaint, the plaintiff alleges that defendant, Kecia Weaver, breached her fiduciary duty to the plaintiff "by allowing Plaintiff to complete various documents knowing, actually and constructively, that Plaintiff never intended to sell or transfer outright 100 % of Plaintiff's interest in the subject property to any third party buyer, including Defendant FIELDS." In the instant matter, it is conceded by the plaintiff that she did not meet defendant Weaver prior to the closing, which occurred on November 25, 2005, and therefore the alleged breach of fiduciary duty occurred on said date when the referenced documents were executed.
In New York an action sounding in breach of fiduciary duty is not governed by a single statute of limitations and "rather, the choice of the applicable limitations period depends on the substantive remedy sought by the plaintiff" ( Monaghan v. Ford Motor Company , 71 AD3d 848, 897 NYS2d 482 [2d Dept., 2010]). Where a plaintiff is demanding a remedy which is "purely monetary in nature", courts construe actions as alleging "injuries to property" within the meaning of CPLR 214(4), which has a three-year limitations period" ( id . ). Here, all of the plaintiff's six denominated causes of action, including that of implied contract, quite clearly demand monetary damages in the sum of $750,000 for the wrongs perpetrated against her. Accordingly, the within action alleging a breach of fiduciary duty is governed by a three year statute of limitations.
Therefore, as the alleged breach of fiduciary duty occurred on November 25, 2005 and the within cause of action was not commenced until March 25, 2009, the cause of action is hereby dismissed as time barred.
As to the Sixth cause of action sounding in negligence, the plaintiff particularly alleges that defendant, Kecia Weaver, "breached her duty of care to the Plaintiff by allowing" the named defendants herein "to woefully and mercilessly loot the proceeds tendered by the buyer, Defendant Fields, at the closing of the subject property, to the unjust enrichment" of each of the other defendants. While cast as an action in negligence, the sixth cause of action actually seeks damages for legal malpractice.
A cause of action sounding in legal malpractice must be commenced with the three years following the accrual of the claim ( CPLR § 214[6] ). The accrual time for a legal malpractice action is measured from the date that the injury is claimed to have occurred "even if the aggrieved party is then ignorant of the wrong or injury" ( McCoy v. Feinman , 99 NY2d 295, 785 NE2d 714, 755 NYS2d 693 (2002) quoting Ackerman v. Price Waterhouse , 84 NY2d 535, 644 NE2d 1009, 620 NYS2d 318). "What is most important is when the malpractice was committed, not when the client discovered it" ( McCoy v. Feinman, supra ; quoting Shumsky v. Eisenstein , 96 NY2d 164, 750 NE2d 67, 726 NYS2d 365).
The applicable statute of limitations can be tolled by operation of the doctrine of continuous representation, which will toll the running of the statute until such time that the ongoing representation is concluded ( Shumsky v. Eisenstein, supra ; Piliero v. Adler Stavros , 282 AD2d 511, 723 NYS2d 91 [2d Dept., 2001]). The doctrine will apply where there exists "a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim" ( McCoy v. Feinman, supra ). Moreover, there must be "clear indicia of an ongoing, continuous, developing and dependent relationship between the client and the attorney often involving an attempt by the attorney to rectify an alleged act of malpractice" ( Piliero v. Adler Stavros, supra , quoting
Luk Lamellen U. Kupplungbau GmbH v. Lerner , 166 AD2d 505, 560 NYS2d 787 [2d Dept., 1990]).
Having carefully reviewed the record, the Court finds that the doctrine of continuous representation is inapplicable. There is no indication that Ms. Scott was operating under any understanding that after the closing defendant Weaver would be representing her with respect to a transaction whereby she would buy back 50% of the interest allegedly conveyed to Ms. Fields ( McCoy v. Feinman, supra ). Further, there is no evidence of any "continuous, developing and dependent relationship" between the plaintiff and Ms. Weaver, or that defendant Weaver ever performed any legal services for the plaintiff subsequent to the closing on November 25, 2005 ( Piliero v. Adler Stavros, supra ). Accordingly, as the claim sounding in legal malpractice accrued on November 25, 2005 and the within action was commenced on March 25, 2009, it is hereby dismissed as barred by the applicable statute of limitations.
Based upon the foregoing, the application interposed by the Weaver defendants pursuant to CPLR § 3211 (a)(5) and (a)(7) for an order dismissing the plaintiffs' complaint is hereby granted.
The plaintiff seeks leave to amend the within complaint to add a cause of action sounding in Aiding and Abetting Fraud. To establish a cause of action sounding therein, a plaintiff must establish the following: [1] the existence of a fraud; [2] defendants' knowledge of the fraud; and [3] that the defendants provided substantial assistance to advance the commission of the fraud ( M T Bank Corp. v. Gemstone CDO VII, Ltd. , 23 Misc 3d 1105(A), 881 NYS2d 3 [Sup Ct, Erie County 2009].
In the proposed amended complaint, the plaintiff alleges that the defendants "made certain material oral and/or written representations and statements regarding past and/or existing facts regarding the subject property prior to and at the Closing", that such statements were "false" and that the defendants had "actual and/or constructive notice" as to the falsity thereof. The plaintiff further alleges that she "relied to her detriment on said representations and statements" and as a result thereof and, "unbeknown to her, [she] was caused to transfer title of the subject property with 100% fee simple interest" to defendant Fields.
Plaintiff additionally alleges that the defendants "provided substantial assistance to advance the commission of the underlying fraud whereby Plaintiff was caused by Defendants . . . under false pretenses, without Plaintiff's knowledge, consent and against Plaintiff's will, to illegally transfer the subject property to Fields by misleading Plaintiff to believe that Plaintiff was refinancing her home by using the credit and assistance of a third party, Fields and title would be transferred from Plaintiff to Plaintiff and Fields, as co-owners of the subject property."
"While leave to amend a complaint should be freely given . . . a proposed amendment, which is utterly lacking in merit should not be permitted" and "bare legal conclusions and factual allegations which [are] plainly contradicted by the record" are insufficient to sustain new theories of liability ( Guzov v. Manor Lodge Holding Corp. , 13 AD3d 482, 787 NYS2d 84 (2d Dept., 2004); Curran v. Auto Lab Service Center, Inc. , 280 AD2d 636, 721 NYS2d 662 [2d Dept., 2001]).
As with the original complaint, the plaintiff is again alleging a theory of liability whereby all of the defendants, acting in collusion, perpetrated a fraud by inducing the plaintiff to unknowingly and illegally transfer 100% of the interest in the subject premises to defendant, Sherran Fields. As noted above, the plaintiff signed a Residential Contract of Sale on July 27, 2005, the clear terms of which provide that Grace Scott, as "Seller", is conveying to Sherran Fields, as "Purchaser", the property located at 418 Bayview Avenue, Inwood, New York. The plaintiff herein does not dispute that she signed said contract and rather does not even address, in any respect, the existence thereof except through the arguments of her attorney, who characterizes same as "one of the main fruits of the fraud."
Here, the very contract of sale, whereby the plaintiff clearly agreed to sell her fee interest in the property to Ms. Fields, was executed four months prior to the plaintiff having met any of the named defendants, with the exception of Moses Crawford. Thus, the generic and conclusory allegations that all of the defendants, acting in concert, aided and abetted a fraudulent scheme to induce the plaintiff to transfer the entirety of her interest in the subject property, is contradicted by the record.
Based upon the foregoing, the plaintiff's application, which seeks leave to amend the complaint to add an additional theory of liability sounding in Aiding and Abetting fraud, is denied.
The plaintiff moves pursuant to CPLR § 3215 for a judgment by default against defendants Sherran Fields, Select Development Group, LLC., Foreclosure Options, Inc., and Moses Crawford. The Court initially addresses that application with respect to defendant Fields.
On an application for a judgment by default, CPLR § 3215 requires that the movant make the following evidentiary proffers: proof of service of the summons and complaint; evidence, via an affidavit by the party, which states the facts which underlie the complaint or a complaint verified by the party; and an affidavit as to the defendant's default in the action.
In support of the instant application, counsel for the plaintiff has submitted the following: a complaint verified by the plaintiff, Grace Scott; the affidavit of the process server, which indicates that service was effected upon Ms. Fields on April 13, 2009, by service of the summons and complaint upon her counsel; and an affirmation from plaintiff's counsel in which it is averred that defendant has not filed an Answer in this action. The time for the defendant to timely interpose a response has expired. The instant application is opposed by the defendant who requests that this Court deem the answer annexed to the opposition papers timely served, nunc pro tunc. In opposing the application, counsel for defendant Fields, argues that in May of 2009, he filed opposition to a motion previously submitted by the plaintiff on April 9, 2009, which sought injunctive relief. Counsel contends that while said opposition "was not specifically denominated as a cross-motion" it did contain a separately numbered paragraph seeking dismissal of the plaintiff's complaint and that he was under the belief that such prayer for affirmative relief was sufficient to constitute a pre-answer motion thereby suspending the time to file an answer. Counsel additionally argues that said explanation constitutes a sufficient excuse for the delay in filing an answer and that the defendant, as the bona fide purchaser of the subject property, has a meritorious defense to the action.
CPLR § 3012[d] provides that "Upon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default." In the matter sub judice, while the defendant did not formally move for an extension of time in which to serve the answer, it has been held that it is within "the court's discretionary authority to grant such relief sua sponte" and that such authority is in keeping with the spirit of the statute which generally views with liberality the excusing of nonprejudicial defaults ( I.J. Honda, P.C. v. Imperato , 159 AD2d 484, 552 NYS2d 356 (2d Dept., 1990]).
Here, the Court is satisfied that the defendant's failure to serve an answer was not wilful and did not indicate an intent to intentionally default in the action. Additionally, as there has been no showing of prejudice suffered by the plaintiff, the plaintiff's instant application for a judgment by default is hereby denied and the answer annexed to the defendant's opposition is hereby deemed served nunc pro tunc ( CPLR § 3012[d] ).
With respect to the application for a default judgment as asserted against defendant, Select Development, LLC, counsel for the plaintiff has submitted the following: the complaint verified by the plaintiff, Grace Scott; the affidavit of the process server, which indicates that service was effected upon the defendant on April 3, 2009, in accordance with § 303 of the Limited Liability Company Law; and an affirmation from plaintiff's counsel in which it is averred that the time for the defendant to timely interpose a response has expired. The plaintiff's application is unopposed notwithstanding that it was served upon the defendant at the last known address.
Having reviewed the record and determined that the plaintiff has proffered the requisite proof in compliance with CPLR § 3215[f], the application for a judgment by default against Select Development, LLC is hereby granted. Damages shall be assessed at the trial of the remaining defendants.
As to defendant, Foreclosure Options, Inc., the plaintiff application for a judgment by default is similarly unopposed. In support thereof, counsel has submitted the following: a complaint verified by the plaintiff, Grace Scott; the affidavit of the process server which indicates that service was effected upon the defendant on April 3, 2009, in accordance with
§ 306 of the Business Corporation Law; and an affirmation from plaintiff's counsel in which it is averred that the time for the defendant to timely interpose a response has expired.
A review of the record reveals that the plaintiff has proffered competent proof in accordance with CPLR § 3215[f], and therefore the application for a judgment by default against Foreclosure Options, Inc., is hereby granted. Damages shall be assessed at the trial of the remaining defendants.
Finally with respect to defendant, Moses Crawford, counsel has provided: the complaint verified by the plaintiff, Grace Scott; the affidavit of the process server which indicates that service was effected upon the defendant at his "dwelling house" on July 20, 2009 in accordance with CPLR § 308; and an affirmation from plaintiff's counsel in which it is averred that the time for the defendant to timely interpose a response has expired.
Upon review of the affidavit of service, the address at which the defendant was served is listed at 561 Kirby Road, Elmont, New York. However, on the Notice of Motion, defendant Crawford's last known address is listed as 3723 East Tremont Avenue, Bronx, New York, and on the affidavit of service with respect to the motion papers, the address is listed as 561 Kirby Road, Elmont, New York and 4110 East Tremont Avenue, Bronx, New York, 10465. Therefore, inasmuch as it is impossible from this record to determine Mr. Crawford's "dwelling place or usual place of abode," which is where service must be effected under CPLR § 308(4), the within application is hereby denied without prejudice to renew.
All applications not specifically addressed are denied.
The foregoing constitutes the Order of this Court.