Opinion
Index No. 850161/2021 Motion Seq. No. 003
02-09-2023
CSAIL 2018-CX11 6-8 WEST 28TH STREET LLC, Plaintiff, v. JTRE NOMAD 8 W 28TH LLC, JACK TERZI, NEW YORK CITY DEPARTMENT OF FINANCE, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, ABECO CONSTRUCTION LLC, PASQUALE QUARANTINO INC., Defendants.
Unpublished Opinion
DECISION + ORDER ON MOTION
JOEL M. COHEN, J.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 116, 117, 118, 119, 120, 121, 122, 123, 124, 137, 138, 139, 141, 142 were read on this motion to REARGUE
JTRE Nomad 8 W 28TH LLC and Jack Terzi (collectively "Defendants") move pursuant to CPLR 2221 to reargue Plaintiffs motion for a default judgment and related relief including appointment of a receiver (Mot. Seq. 002), and upon reargument, accepting Defendants' answer and vacating the default and appointment of the receiver on the basis that (1) the Court failed to address JTRE Defendants' cross-motion to compel acceptance of a late answer; (2) the December 1, 2022 Decision (NYSCEF 108) appears to have mistakenly believed that the portion of Plaintiff s motion seeking the appointment of a receiver was unopposed. For the reasons set forth below, the motion is denied.
The JTRE Defendants also sought temporary relief staying the Decision and Order on Motion dated December 1, 2022, holding the Defendants in default and appointing a temporary receiver (NYSCEF 108) and implementation thereof, and staying all receiver activities, powers and authorities pursuant to that Order. After oral argument on December 9, 2022, this Court denied the temporary relief and set a briefing schedule for the Order to Show Cause (NYSCEF 124).
Under CPLR 222l[d], a court may grant a motion to reargue where the movant offers "matters of fact or law overlooked or misapprehended by the court in determining [a] prior motion," so long as all matters of fact on which the motion to reargue relies were offered in the prior motion (see William P. Pahl Equip. Corp, v Kassis, 182 A.D.2d 22 [1st Dept 1992]; see also CPLR 2221 [d]). Reargument should be granted where the court "mistakenly arrived at its earlier decision" (see 1735 Univ. Ave. Assoc. LLC v Andrews Dev. Corp., 92 A.D.3d 516 [1st Dept 2012]).
Although Defendants have pointed out two ways in which the Order was unclear, they have not demonstrated that the Court overlooked or misapprehended any matters of law or fact. First, the Court did not ignore the arguments made in Defendants' cross-motion to compel acceptance of a late answer. It did consider (and reject) Defendants' arguments. Second, the Court did not overlook Defendant's opposition to the receiver. Defendants correctly note that the sentence in the Decision (NYSCEF 108 at 7) which says, "[g]iven these circumstances, and the fact that Defendant has defaulted on this motion, the Court finds the appointment of a receiver appropriate" might have suggested that the Court did not consider Defendants' opposition. That is not the case. The sentence should instead have read that "Defendant has defaulted in this action."
However, the Court is not persuaded that Defendants' arguments warrant a change in outcome. First, Defendants argue that the Court should have accepted their Answer because Plaintiff waived any objection to the Answer by failing to send a notice of rejection within 15 days, relying on CPLR § 2101(f). When addressing whether a plaintiff forfeits objection to a late answer, the First Department applies general waiver principles. A waiver may be found, for example, where a plaintiff accepts and retains a defendant's answer for an extended period and only raises the issue of its untimeliness later in the litigation, such as in response to requests for discoveiy or a motion (Wittlin v Schapiro's Wine Co. Ltd. (178 A.D.2d 160, 161 [1st Dept 1991]; Echevarria v 158th St. Riverside Dr. Hous. Co., Inc., 113 A.D.3d 500, 502 [1st Dept 2014]; Phillips v League For Hard of Hearing, 254 A.D.2d 181, 181 [ 1 st Dept 1998]). Here, there was no such a waiver. Plaintiff did not retain the answer and then raise an objection to its lateness only in response future discoveiy requests or the like. Rather, Plaintiff notified Defendants that its answer was late and that it was rejected.
Defendants argue that the Second Department has read CPLR § 2101(f) to impose a rigid statutory 15-day deadline to reject a late answer (see U.S. Bank N. A. et al. v Lopez, 192 A.D.3d 849 [2d Dept 2021]). Even assuming that is a fair reading of the case, the Court does not believe applying such a deadline in these circumstances would be consistent with the above-referenced First Department precedent - utilizing a more flexible waiver standard - which is binding on this Court. Moreover, the Court notes that the plain language of CPLR § 2101(f) speaks to "a defect in the form of a paper," and providing "leave to correct" such a defect, concepts that would not appear to naturally apply to whether or not the paper was filed on time.
Second, the Court did not overlook the substance of Defendant's opposition to appointment of a receiver. It simply disagreed with Defendants' opposition on the merits.
Moreover, Defendants do not even attempt to proffer a meritorious defense (see Bustamante v Green Door Realty Corp., 69 A.D.3d 521, 522 [2010]). They do not dispute that they have failed to pay the mortgage installments, property taxes and other amounts required by the loan documents.
Accordingly, it is, ORDERED that Defendants motion for leave to reargue is denied; it is further
ORDERED that Defendant's cross-motion filed in Mot. Seq. 002 was denied by the December 1, 2022 Order (NYSCEF 108), and the Court confirms that Defendants did not default in responding to Mot. Seq. 002.
This constitutes the Decision and Order of the Court.