Opinion
Index No. 155201/2022 MOTION SEQ. No. 002
10-18-2023
EA 132ND LLC, Plaintiff, v. HARLEM INVESTORS LLC, ONE 100 STREET CORPORATION, JOHN DOE #1-10, ABC CORP. #1-10 Defendant.
Unpublished Opinion
MOTION DATE 8/08/2023
PRESENT: HON. LISA S. HEADLEY, Justice
DECISION + ORDER ON MOTION
HON. LISA S. HEADLEY, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 19, 20, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 were read on this motion to/for MISCELLANEOUS
Defendants, Harlem Investors, LLC and One 100 Street Corporation, (collectively the "movant-defendants") move this Court, pursuant to CPLR §3012(d), for an Order compelling Plaintiff to accept service of their Verified Answer and Counterclaims, and Notices to take Deposition Upon Oral Examinations ("deposition notices"). Plaintiff, EA 132nd LLC ("Plaintiff'), filed opposition and a cross-motion for a default judgment, pursuant to CPLR §3215, against the movant-defendants. Movant-defendants filed opposition to Plaintiffs cross-motion.
Defendants' Motion to Compel
In the instant motion, the movant-defendants contend that the plaintiff should be compelled to accept defendants' Answer and deposition notices because defendant Harlem Investors only received a copy of the notice on this action via the Secretary of State on October 5, 2022, whereas defendant One 100 Corp, had not received the notice. Defendants contend that the plaintiff has failed to file affidavits of service of the complaint in this action. Defendants also assert that the Answer and deposition notice were filed and served on plaintiff a "mere 8 days after Harlem Investors received the notice."
Defendants' counsel asserts that he attempted to contact plaintiffs counsel, via a phone call and e-mail, to explain the issue regarding service, and to request that plaintiff withdraw its notice of rejection and to accept service of the Answer and deposition notice, which plaintiff has not consented to accept. Defendants argue there is no prejudice to the plaintiff in its delay in serving the Answer, and that such late responsive pleadings should be accepted. Additionally, defendants argue there is a strong public policy favoring the determination of actions on their merits. .
Plaintiffs Opposition and Cross-Motion for Default Judgment
Plaintiff filed opposition to the motion to compel, and cross-moved, pursuant to CPLR §3215, for an Order granting Plaintiff a default judgment against movant-defendants. Plaintiff submits that the defendants were served with process in this action on June 30, 2022, and then . service was complete on the date the Secretary of State was served. Plaintiff claims that defendant failed to serve an Answer within 30 days pursuant to CPLR §3012(c). Plaintiff further argues that the movant-defendants have not proffered a reasonable excuse for their default in filing an answer, and failed to demonstrate a meritorious defense. In addition, plaintiff argues that in support of the motion, defendants rely on an attorney affirmation, which is insufficient because the attorney has no personal knowledge of the facts. Further, in support of the cross-motion for a default judgment, plaintiff argues that since defendants did not timely serve an Answer prior to the August 1, 2022, deadline, the Answer is rejected, and a default judgment should be granted.
Defendants' Opposition to Plaintiff's Cross-Motion
In opposition to the cross-motion and in further support of their motion to compel, the defendants submitted the affidavit of Joseph Makhani, as well as their attorneys' affirmation. Defendants argue that they did not appear in this action until they filed their Answer in October 2022 because the New York Secretary of State did not provide notice to defendant Harlem Investors LLC's agent until October 2022, and no such notice has been provided to defendant One 100 Street Corp.'s agent. Furthermore, movant-defendants assert they have meritorious defenses to this action and a valid counterclaim to quiet title in their favor because Plaintiff s alleged grantor, Ronald Stewart ("Stewart"), did not inherit any right, title, or interest in the subject property upon the death of the decedent related to this action. Movant-defendants argue that given Stewart's prior tenancy at the Property, Plaintiff would not be able to establish the elements of adverse possession, rather it will be shown that Stewart and his mother resided at the property with the permission of the decedent. Therefore, movant-defendants request this Court to grant their motion to compel plaintiff to accept the Answer, and to deny Plaintiffs cross-motion for a default judgment.
Discussion
There exists a strong public policy in favor of disposing of cases on their merits. See e.g., Goncalves v. Stuyvesant Dev. Assoc., 232 A.D.2d 275, 276, 648 N.Y.S.2d 441 (1st Dep't 1996). However, this policy does not relieve a party moving to vacate a default from satisfying the two pronged test of showing both (1) a reasonable excuse for the default; and (2) a meritorious defense to the action. Id.; see also, DTG Operations, Inc. v. Excel Imaging, P.C., 119 A.D.3d 410, 990 N.Y.S.2d 8 (1st Dep't 2014). CPLR § 3012(d) provides that "upon the application of a party, the court may extend the time to appear or 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." Ardel Constr. & Design Grp., Corp. v. VBG 990 AOA LLC, 77 Misc.3d 1219(A) (N.Y. Sup. Ct. 2023). Furthermore, to successfully oppose a CPLR §3215(a) motion for default judgment, here the defendants must show a reasonable excuse for the default and a meritorious defense. Zhang v Jong, 195 A.D.3d 435 (1st Dep't 2021).
Here, this Court finds the movant-defendants demonstrated a reasonable excuse in that there was "de minimis" delay in filing their Answer eight days after they claim to have received notice via the Secretary of State upon defendant Harlem Investors, combined with their claim that the defendant One 100 Corp, did not receive a notice from the Secretary of State. Here, the Court has considered to be credible the attorneys' affirmation submitted in support of the motion, as well as the defendant's affidavit filed in opposition to the motion for default judgment and in further support of the motion to compel. This Court also considers that the plaintiff only filed the affidavits of service of the complaint in this case, as an exhibit to their cross-motion. In the interest of justice, the Court will permit the filing of the affidavits of service as well as the Answer filed.
Furthermore, there is no indication that the delay was willful or that it was prejudicial to the plaintiff. The defendants presented a meritorious defense in their papers, including that plaintiffs alleged grantor did not inherit any right, title, or interest in the subject property upon the death of the decedent related to this action. As it is the Court's policy of resolving cases on the merits, this Court grants the movant-defendants' motion to compel plaintiff to accept their answer, counterclaims, and deposition notices pursuant to CPLR §3012(d). Therefore, the plaintiffs cross- . motion for a default judgment against movant-defendants is denied.
Accordingly, it is hereby
ORDERED that Defendants Harlem Investors LLC and One 100 Street Corporation's motion pursuant to CPLR §3012(d) compelling Plaintiff to accept service of movant-defendants' Verified Answer and Counterclaims and Notices to Take Deposition Upon Oral Examinations is GRANTED, and it is further
ORDERED that Plaintiff EA 132nd LLC's cross-motion, pursuant to CPLR §3215, for a default judgment against movant-defendants, is DENIED, and it is further
ORDERED that the parties are directed to complete the Preliminary Conference Order attached hereto and to submit same to the Part 28 clerk via e-mail and upload to NYSCEF; and it is further
ORDERED that any requested relief sought not expressly addressed herein has nonetheless been considered; and it is further
ORDERED that within 30 days of entry, movant-defendants shall serve a copy of this decision/order upon all parties with notice of entry.
This constitutes the Decision and Order of the Court.
SO ORDERED.