Opinion
868 Index No. 809792/21 Case No. 2023–00738
10-24-2023
U.S. BANK NATIONAL ASSOCIATION etc., Plaintiff–Respondent, v. BARKER PROJECT LLC et al., Defendants–Appellants.
The Law Office of Diana Rubin, Manhasset (Diana Rubin of counsel), for appellants. Roach & Lin, P.C., Syosset (Edward Rugino of counsel), for respondent.
The Law Office of Diana Rubin, Manhasset (Diana Rubin of counsel), for appellants.
Roach & Lin, P.C., Syosset (Edward Rugino of counsel), for respondent.
Manzanet–Daniels, J.P., Rodriguez, Pitt–Burke, Higgitt, Rosado, JJ.
Order, Supreme Court, Bronx County (Fidel E. Gomez, J.), entered January 5, 2023, which, insofar as appealed from as limited by the briefs, denied defendants' motion for leave to file a late answer, unanimously affirmed without costs.
CPLR 3012(d) provides that a court has the discretionary power to extend the time to plead, or to compel acceptance of an untimely pleading "upon such terms as may be just," provided that there is a showing of a reasonable excuse for the delay. The following factors " ‘must ... be considered and balanced’ in determining whether a CPLR 3012(d) ruling constitutes an abuse of discretion. Those factors include the length of the delay, the excuse offered, the extent to which the delay was willful, the possibility of prejudice to adverse parties, and the potential merits of any defense" ( Emigrant Bank v. Rosabianca, 156 A.D.3d 468, 472–473, 67 N.Y.S.3d 175 [1st Dept. 2017] ).
Defendants based their good cause on the fact that counsel purportedly "engaged in communications with attorneys, whom she believed represented plaintiff, on August 10, 2021—even before the service of process on defendants was effectuated," without providing any details about, or substantiation of, these alleged communications. This Court has found that "[s]ettlement negotiations alone are an insufficient excuse for delay" ( Judith S. v. Howard S., 46 A.D.3d 318, 319, 847 N.Y.S.2d 529 [1st Dept. 2007] ; see Freedman v. Chemical Constr. Corp., 43 N.Y.2d 260, 264, 401 N.Y.S.2d 176, 372 N.E.2d 12 [1977] ). Since defendants failed to demonstrate either "good cause" or a "reasonable excuse" for the delay in answering, the motion for leave to file a late answer was providently denied.
We have considered defendants’ remaining arguments and find them unavailing.