Opinion
Index No. 517949/2019
06-29-2023
209 BARBEY STREET TRUST, Plaintiff, v. IZETTA ANNEKA SCOTLAND and 209 BARBEY STREET LLC, Defendants,
Unpublished Opinion
PRESENT: HON. LEON RUCHELSMAN
Leon Ruchelsman JSC
The defendant has moved pursuant to CPLR §3025 seeking to file an amended answer. The plaintiff has moved pursuant to CPLR §6513 seeking to extend the Notice of Pendency. The motions have been opposed respectively. Papers were submitted by all parties and after reviewing all the arguments, this court now makes the following determination..
According to the amended complaint, on June 15, 2020 non-party and owner of property located at 209 Barbey Street in Kings County conveyed title to the property to defendant Izetta Scotland. On June 25, 2019 Scotland entered into a contract to sell the property to the' plaintiff. The amended complaint alleges that Scotland refused to close title precipitating this action. The amended complaint asserts causes of action for specific performance, quiet title and intentional interference with a contract. The defendant 209 Barbey Street LLC has. now moved seeking to serve an answer to assert defenses that it purchased the subject property on September 27, 2019 prior to the imposition of any notice of pendency or any knowledge of a prior contract with, the plaintiff and thus has the right to maintain the property. Moreover, the proposed answer asserts one counterclaim,, namely a determination they are the lawful owner of the. property. Further, as noted, the plaintiff has moved seeking, to extend the notice of pendency.
Conclusions of- Law
It is well settled that a .request to amend a pleading shall be freely given unless the proposed amendment, would unfairly prejudice or surprise the opposing party, or is. palpably insufficient or patently devoid of merit (Addufci v. 1829 Park Place LLC,- 176 A.D.3d 658, 107 N.Y.S.3d 690 [2d Dept., 2019]). The decision whether to grant such leave is within the court's sound discretion and such determination will hot lightly be set aside (Ravnikar v. Skyline Credit-Ride Inc,, 79 A.D.3d 1118, 913 N.Y.S.2d 339 [2d Dept., 2010]). Therefore, when exercising that discretion the court should, consider whether the party seeking the amendment was aware cf the facts upon which the request is based and whether a reasonable excuse for any delay has been presented and whether any prejudice will result (Cohen v. Ho, 38 A.D.3d 705, 83.3 N.Y.S.2d 542 [2d Dept., 2007]).
The opposition to the filing of the answer is based on the fact the defendant maintains no defense since the notice of pendency was filed prior to the defendant's contract. Indeed, while a notice of pendency appears to have been filed on August 14, 2019 (see, NYSCEF Doc. No. 72) the defendant may be given an opportunity to seek to assert a defense in efforts to support its counterclaim. It should be noted that the- title report submitted which fails- to note any notice of pendency is dated June 25, .20.19-(see, Full Title Search [NYSCEF Doc. Nd. 80]) and does not really support defendant's position at all. Further, questions of fact are raised by the title insurance report (see, NYSCEF Doc... No. 79) which notes two. notices of pendency and whether, either of those was filed by the plaintiff foreclosing any argument the defendant had.no notice of the notice of pendency.
Therefore, at this juncture the motion seeking to allow the service of the answer is granted...
Turning, to the mot,ion seeking to- extend the notice, of pendency, it is well settled that a Notice of Pendency may be extended upon a showing of good cause (Leven Betts, Ltd., v. Mack. 102 A.D.3d 840, 958 N.Y.S.2d 461 [2d Dept., 2013]). In addition, the motion seeking the extension must be made prior to its expiration (In Re Sakow, 97 N.Y.2d 436, 741 N.Y.S.2d 175 [2002]). It- is further well settled that continuing litigation as well as extensive discovery is good cause for an extension (see, Schulman Family Enterprises v. Schulman, 33 Misc.3d 1234 (A), 943 \YS2c 7 94 [Supreme Court Suffolk County 2011]).
Executive Order No. 202.8 and subsequent orders extending that order tolled matters- regarding any- statute-, local ordinance, order, rule or regulation (.see-, 9 NYCRR 8.202.8, see, also. Prestige Deli and Grill Corp., 213 A.D.3d 962, 184 N.Y.S.3d 154 [2d Dept., 2023]-. Thus., the time in which to extend the notice, of pendency was tolled and consequently the motion seeking to extend the filing of the notice of pendency is granted.
So ordered.