Opinion
2019-00344 Index 709001/17
02-09-2022
U.S. Bank National Association, etc., respondent, v. Steve Gordon, et al., appellants, et al., defendants.
Young Law Group, PLLC, Bohemia, NY (Justin F. Pane of counsel), for appellants. McCalla Raymer Leibert Pierce, LLC, New York, NY (Brian P. Scibetta of counsel), for respondent.
Young Law Group, PLLC, Bohemia, NY (Justin F. Pane of counsel), for appellants.
McCalla Raymer Leibert Pierce, LLC, New York, NY (Brian P. Scibetta of counsel), for respondent.
COLLEEN D. DUFFY, J.P., ANGELA G. IANNACCI, JOSEPH J. MALTESE, WILLIAM G. FORD, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendants Steve Gordon and Ashia Gordon appeal from an order of the Supreme Court, Queens County (Salvatore Modica, J.), entered December 11, 2018. The order, insofar as appealed from, granted that branch of the plaintiff's motion which was to compel acceptance of its late reply to those defendants' counterclaims.
ORDERED that the order is affirmed insofar as appealed from, with costs.
On June 29, 2017, the plaintiff commenced this action against the defendants Steve Gordon and Ashia Gordon (hereinafter together the defendants), among others, to foreclose a mortgage on residential property located in Queens. The defendants interposed an answer containing two counterclaims, one pursuant to Real Property Law § 282 for attorney's fees and one pursuant to RPAPL 1501(4) to cancel and discharge the mortgage on the ground that the action was time-barred. The plaintiff failed to timely reply to the counterclaims. Thereafter, the plaintiff moved, inter alia, to dismiss the counterclaims or, alternatively, to compel the defendants to accept its late reply to the counterclaims. The plaintiff annexed to its motion papers, inter alia, a reply to the counterclaims, which was verified by the plaintiff's counsel. The defendants opposed the motion. In an order entered December 11, 2018, the Supreme Court denied that branch of the motion which was to dismiss the counterclaims but granted that branch of the motion which was to compel acceptance of the plaintiff's late reply to the counterclaims. The defendants appeal.
In seeking to vacate a default in serving a reply to counterclaims, a party must establish both a reasonable excuse for its delay in replying and a potentially meritorious defense to the counterclaims (see CPLR 3012[d]; Sudit v Labin, 148 A.D.3d 1078, 1079; People's United Bank v Latini Tuxedo Mgt., LLC, 95 A.D.3d 1285, 1286). Where a party asserts law office failure as an excuse, "it must provide 'a detailed and credible explanation of the default'" (People's United Bank v Latini Tuxedo Mgt., LLC, 95 A.D.3d at 1286, quoting Kohn v Kohn, 86 A.D.3d 630, 630).
Here, the plaintiff's attorney provided a detailed and credible explanation for the plaintiff's failure to timely serve a reply to the counterclaims (see People's United Bank v Latini Tuxedo Mgt., LLC, 95 A.D.3d at 1286; Adolph H. Schreiber Hebrew Academy of Rockland, Inc. v Needleman, 90 A.D.3d 791, 792). Moreover, the plaintiff set forth potentially meritorious defenses to the counterclaims. In particular, with respect to the counterclaim pursuant to RPAPL 1501(4) to cancel and discharge the mortgage on the ground that the action was time-barred, the plaintiff submitted evidence that the defendants' claim that the action was time-barred had already been adjudicated and found to be without merit.
Ordinarily, a party seeking to vacate a default in answering or replying cannot demonstrate a potentially meritorious defense by submitting an answer or reply verified only by an attorney and an affirmation by an attorney who does not have personal knowledge of the facts (see Loughran v Giannoti, 160 A.D.3d 709, 710; State Farm Mut. Auto. Ins. Co. v Austin Diagnostic Med., P.C., 153 A.D.3d 576). Contrary to the defendants' contention, however, under the circumstances of this case, the plaintiff's submission of a reply verified by its attorney and an affirmation by the attorney was not fatal to the plaintiff's motion.
Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was to compel acceptance of its late reply to the defendants' counterclaims.
DUFFY, J.P., IANNACCI, MALTESE and FORD, JJ., concur.