Opinion
Index No. 23415/2018E
03-03-2022
NYCTL-2017-A TRUST et al., Plaintiff, v. The HEIRS-AT-LAW OF John GHISELLI et al., Defendants.
Plaintiffs filed this tax lien foreclosure proceeding on March 26, 2018 against, inter alia, the heirs of one Catherine Ghiselli, deceased. The subject property, located at 2446 Webb Avenue in the Bronx, New York was purchased by John Ghiselli and his wife Catherine in 1977.
By letter dated August 13, 2018, plaintiffs were contacted by counsel, confirming that he was counsel for defendant Rita Franco (a/k/a Rita Ghiselli), that she was the sole heir of John Ghiselli, as defendant Catherine Ghiselli had predeceased her husband, John. Plaintiffs also received documents to substantiate the claim that Rita Ghiselli was the sole heir, that the caption should be revised, that Rita resided at the subject premises and as a recipient of Social Security benefits, her counsel opined that she could only afford to pay the lien and redeem the property if she took a reverse mortgage. (NYSCEF Doc. No. 37, Exhibit F, p. 16 - 22 of 75).
Nearly nine months after the original complaint was filed and four months after the communication from counsel for defendant, plaintiffs first attempted in person service of the original complaint on Rita Franco between December 10 and December 20, 2018. Plaintiffs affixed documents, including a foreclosure notice to the door of the premises and mailed the documents (NYSCEF Doc. No. 9). It is not clear why defendant Franco's attorney was not served based on his representation confirming that he was Ms. Franco's attorney or whether there was any response from plaintiffs to defendant's letter dated August 13, 2018.
Nearly nine months later, plaintiffs subsequently filed an Amended Complaint on September 12, 2019 which amended the caption naming, inter alia, the heirs of John Ghiselli, Rita Franco a/k/a Rita Ghiselli, Joseph Goia, Carlo Goia. Plaintiffs rejected defendant Franco's answers in October 2019 (NYSCEF Doc. Nos. 32 - 33). After engaging Nationwide Court Services to prepare an Affidavit of Heirship (NYSCEF Doc. No. 37), plaintiffs moved on December 16, 2019 to discontinue the complaint as to Joseph and Carlo Goia and to allow service by publication. Plaintiffs did not seek a default judgment at that time.
By Order dated February 26, 2021, this Court granted plaintiffs’ motion for Amendment, Publication and Appointment of a Guardian Ad Litem. Plaintiffs’ affidavits of publication show that the dates of publication were after June 25, 2021.
In the instant motion, plaintiffs now move for a default judgment. Defendant opposes on the ground that plaintiff's motion for a default judgment is untimely and also asserts that the Court lacks jurisdiction as the plaintiff failed to comply with the Order requiring publication by failing to timely publish the Supplemental Summons and Complaint. In reply, plaintiffs fail to sufficiently address the issue of timeliness raised in defendant's opposition but assert that they have manifested a clear intent not to abandon their complaint.
CPLR 3215(c) provides, in pertinent part, that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." "The language of CPLR 3215 (c) is not, in the first instance, discretionary, but mandatory, inasmuch as courts ‘shall’ dismiss claims ( CPLR 3215 [c] ) for which default judgments are not sought within the requisite one-year period, as those claims are then deemed abandoned" ( HSBC Bank USA, N.A. v Grella , 145 AD3d 669, 671 [2nd Dept 2016] ). The failure to timely seek a default may be excused if ‘sufficient cause is shown why the complaint should not be dismissed’ ( CPLR 3215 [c] ), which requires the plaintiff proffer a reasonable excuse for the delay in timely moving for a default judgment and to demonstrate that the cause of action is potentially meritorious ( id. at 671 ).
The time to seek a default judgment should be measured from the default in responding to the original, not the amended, complaint ( MTGLQ Inv'rs, L.P. v. Shay, 2021 NY Slip Op 00237, ¶¶ 1-2, 190 AD3d 527, 528-29, 140 N.Y.S.3d 496, 497 [App. Div. 1st Dept.], citing Quadrozzi Concrete Corp. Individual Account Plan & Trust v Javash Realty, LLC, 164 AD3d 1491, 1491-1492, 85 N.Y.S.3d 217 [2d Dept 2018], lv denied 33 NY3d 903 [2019] ).
Although an amended complaint supersedes the original complaint, and therefore requires a new responsive pleading to avoid default (see Hummingbird Assoc. v Dix Auto Serv., 273 AD2d 58, 58 [1st Dept 2000], lv denied 95 NY2d 764 [2000] ), allowing the filing of an amended complaint to effectively cure a failure to timely move for a default in responding to the original complaint would create an exception that swallows the rule.
The plaintiffs’ conclusory and unsubstantiated assertions failed to establish a reasonable excuse for its delay in initiating proceedings for the entry of a default judgment. Contrary to the plaintiffs’ contention, it failed to demonstrate sufficient cause for its failure to timely seek a default judgment against the defendant. Here, plaintiffs did not move for a default judgment until well after one year after Franco's default in responding to the original complaint, and because plaintiff fails to offer any excuse for this delay (see Deutsche Bank Natl. Trust Co. v Cruz, 173 AD3d 610, 610, 102 N.Y.S.3d 601 [1st Dept 2019] ), dismissal is appropriate under CPLR 3215(c).
As the plaintiff failed to proffer a reasonable excuse for its delay in initiating proceedings for a default judgment, it is not necessary to consider whether it had a potentially meritorious cause of action (see CitiMortgage, Inc. v Goldstein , 187 AD3d 841, 844 [2nd Dept 2020] ).
The Court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any relief requested by either party was not addressed, it is hereby denied.
Accordingly, it is hereby
ORDERED that the motion of plaintiffs for a default judgment and Order of Reference is denied; and it is further
ORDERED that this action is dismissed.
This is the Decision and Order of the Court.