Opinion
116702/09.
Decided March 16, 2011.
Plaintiff's counsel: Rosicki, Rosicki Associates, P.C., Plainview, NY.
Defendants are pro se.
In this action to foreclose a mortgage, pro se defendant Heemi Kim moves for an order pursuant to CPLR 3012(d) granting leave to serve a late answer (Motion Sequence No. 002), and pro se co-defendant Seong Jun Kim moves for an order pursuant to CPLR 3025(b) granting leave to amend his answer (Motion Sequence No. 003). The motions are consolidated for the purposes of determination.
The proposed late answer and the proposed amended answer are identical and difficult to comprehend. To the best of the court's comprehension, defendants are seeking to assert five
affirmative defenses based on section 6-m of New York State Banking Law, which is entitled "Subprime home loans," and a sixth affirmative defense alleging that plaintiff has not produced the note, and has not established the assignment of the note and mortgage. The proposed answers also assert one counterclaim alleging that the "initial loan should be rendered void" under Banking Law § 6-m(12), and seeks damages, declaratory or injunctive relief, or "for the Court to dismiss the note entirely."
CPLR 3012(d) provides that "the court may extend the time to appear to 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 determining a motion for leave to serve a late answer pursuant to CPLR 3012(d), the court considers a number of factors including the length of defendant's delay, the excuse offered for the delay, the absence or presence of willfulness, the possibility of prejudice to plaintiff, the potential merits of the defenses, and the public policy favoring the resolution of dispute on their merits. See Jones v. 414 Equities LLC , 57 AD3d 65 , 81 (1st Dept 2008). Where as here, no default order or judgment has been entered, a showing of the potentially meritorious nature of the defenses is not an essential component of CPLR 3012(d) relief. See Empire Healthchoice Assurance, Inc. v. Lester, ___ AD3d ___, 2011 WL 650801 (1st Dept 2011); Jones v. 414 Equities LLC, supra; DeMarco v. Wyndham International, Inc., 299 AD2d 209 (1st Dept 2002).
Motions pursuant to CPLR 3025(b) for leave to amend pleadings are to be freely granted, in the absence of prejudice or surprise. See Thompson v. Cooper , 24 AD3d 203 (1st Dept 2005); Zaid Theatre Corp. v. Sona Realty Co. , 18 AD3d 352 (1st Dept 2005). Leave will be denied, however, where the proposed pleading is palpably insufficient as a matter of law. See Aerolineas Galapagos, S.A. v. Sundowner Alexandria , 74 AD3d 652 (1st Dept 2010); Thompson v. Cooper, supra at 205. The determination whether to allow amendment is committed to the court's discretion. See Peach Parking Corp v. 346 West 40th Street, LLC , 42 AD3d 82 , 86 (1st Dept 2007). Although defendant bears the burden of establishing the merits of the proposed amendment, plaintiff, as the party opposing the motion, must overcome a "presumption of validity" in defendant's favor and "demonstrate that the facts alleged and relied upon in the moving papers are obviously unreliable or insufficient to support the amendment." Id.
Defendant Heemi Kim shall be permitted to serve a late answer. Although the excuse proffered by Heemi Kim that she is "without sufficient legal knowledge" and "was not fully aware of legal procedures and as a result overlooked the importance of answering Plaintiff's complaint until recent[ly]," is not compelling, and the nine-month delay cannot be considered brief, plaintiff has not been prejudiced by the delay, since it has yet to make a motion for a default judgment against defendant Heemi Kim. Plaintiff merely moved for summary judgment against the only answering defendant, Seong Jung Kim in July 2010. Defendants subsequently moved to amend and serve a late answer in August 2010. After several adjournments, the three motions were scheduled for oral argument on November 18, 2010, but by letter dated November 11, 2010, plaintiff requested that its summary judgment motion be "marked withdrawn." On November 18, 2010, this court heard argument on defendants' motions, and on November 22, 2010, the court issued an order permitting plaintiff's motion to be withdrawn. Thus, since plaintiff did not move for a default judgment against Heemi Kim and withdrew its motion for summary judgment against Seong Jun Kim, plaintiff cannot claim that it has been prejudiced by the delay.
Copies of the affidavits of service are annexed to plaintiff's Affirmation in Opposition. The affidavit of service for Heemi Kim states that she was served on November 28, 2009; she made her motion to serve a late answer on or about August 20, 2010.
Moreover, there is no indication of willfulness on the part of defendants. Pro se defendants Heemi Kim and Seong Jun Kim are mother and son, and at oral argument Heemi Kim stated that she did not serve an answer because she knew her son had answered and believed his answer was "sufficient." Also, as noted above, the issue as to whether defendant Heemi Kim has a meritorious defense is not essential, as plaintiff has not obtained a default order or judgment against her. See Empire Healthchoice Assurance, Inc. v. Lester, supra; Jones v. 414 Equities LLC, supra; DeMarco v. Wyndham International, Inc., supra.
Therefore, since plaintiff has not been prejudiced by the delay and the delay was not willful, and in view of the public policy favoring the resolution of cases on the merits, the court in its discretion concludes that defendant Heemi Kim is entitled to an extension of time to answer.
Turning to defendant Seong Jun Kim's motion, the court finds that he shall be permitted to amend his answer. The proposed new affirmative defenses (first, second, third, fourth and fifth affirmative defenses) and counterclaim are based on the provisions in the Banking Law pertaining to sub-prime mortgages. While plaintiff's counsel asserts that defendants' mortgage does not qualify as a sub-prime mortgage and that the property at issue is not defendants' "principal residence," those issues cannot be resolved as a matter of law based on an attorney's affirmation alone. Notably, defendants submit reply papers stating that their "sole focus is to save their home."
The proposed sixth affirmative defense essentially alleges that plaintiff has not produced the note, and has not established the assignment of the note and mortgage. That defense is not entirely new, as the second and sixth affirmative defenses in the original answer allege that plaintiff is not the "holder of [the] mortgage and promissory note" and plaintiff lacks "standing." Plaintiff's counsel argues that the issues raised in the proposed sixth affirmative defense "have been addressed in the pending motion for summary judgment in which plaintiff has demonstrated that it is the owner and holder of the note." Plaintiff, however, does not submit copies of any of the papers submitted with its summary judgment motion, and as noted above, that motion was withdrawn, so any documents or affidavits submitted with that motion are not part of the record before this court on defendants' motions.
Under these circumstances, plaintiff has failed to make a sufficient showing that "the facts alleged and relied upon in the moving papers are obviously unreliable or insufficient to support the amendment," Peach Parking Corp v. 346 West 40th Street, LLC, supra at 86, and defendant Seong Jun Kim is granted leave to amend his answer.
Accordingly, it is
ORDERED that the motion by defendant Heemi Kim for leave to serve a late answer is granted (Motion Sequence No. 002), and the proposed answer annexed to the motion papers shall be deemed served upon service of a copy of this order with notice of entry; and it is further
ORDERED that the motion by defendant Seong Jun Kim for leave to amend his answer is granted (Motion Sequence No. 003), and the proposed amended answer annexed to the motion papers shall be deemed served upon service of a copy of this order with notice of entry; and it is further
ORDERED that the parties are directed to appear for a preliminary conference on April 28, 2010 at 9:30 a.m. in Part 11, Room 351, 60 Centre Street.
The court is notifying the parties by mailing copies of this decision and order.