| Bank of N.Y. Mellon v Jinks |
| 2015 NY Slip Op 03010 [127 AD3d 1367] |
| April 9, 2015 |
| Appellate Division, Third Department |
[*1]
| The Bank of New York Mellon, Formerly Known asThe Bank of New York, as Successor-in-Interest to JPMorgan Chase Bank, NationalAssociation, Formerly Known as JPMorgan Chase Bank, as Trustee for Bear StearnsAsset Backed Securities Trust 2003-3, Asset Backed Certificates, Series 2003-3,Respondent, v Leslie J. Jinks et al., Appellants, et al.,Defendants. |
True Walsh & Sokoni, LLP, Ithaca (Khandikile M. Sokoni of counsel), forappellants.
Parker Ibrahim & Berg, LLC, New York City (Melinda Colon Cox of counsel),for respondent.
Clark, J. Appeal from an order of the Supreme Court (Mulvey, J.), entered April 21,2014 in Tompkins County, which, among other things, granted plaintiff's motion for anextension of time to serve a reply to certain counterclaims.
In November 1968, defendants Leslie J. Jinks and Marie Patricia Jinks (hereinaftercollectively referred to as defendants) purchased a parcel of property located in the Cityof Ithaca, Tompkins County. Approximately 30 years later, defendants executed a noteand mortgage on their property and, after a series of successive assignments, plaintiffbecame the holder of the note and mortgage. In August 2013, plaintiff commenced theinstant action alleging that [*2]defendants were in defaultof their mortgage and seeking foreclosure of their home. Defendants answered andasserted counterclaims alleging, among other things, that plaintiff had unjustly modifiedtheir mortgage payment requirements and had misled defendants by requiring them torepeatedly complete onerous loan modification applications to no avail. After failing totimely reply to defendants' counterclaims, plaintiff moved for an extension of time toanswer. Defendants opposed said motion and cross-moved for a default judgment againstplaintiff. After a hearing, Supreme Court granted plaintiff's motion and denieddefendants' cross motion. Defendants now appeal arguing that Supreme Court abused itsdiscretion in excusing plaintiff's default.
Pursuant to CPLR 3012 (d), Supreme Court possesses the discretion to extend aparty's time to serve an answer "upon a showing of reasonable excuse for delay ordefault" (see Watson vPollacchi, 32 AD3d 565, 565 [2006]; Amodeo v Gellert & Quartararo, P.C., 26 AD3d 705,706 [2006]; Aabel v Town of Poughkeepsie, 301 AD2d 739, 739-740 [2003])."Whether to grant a party's application in this regard is a matter committed to SupremeCourt's sound discretion following due consideration of, among other things, the lengthof the delay, whether such delay was willful and whether the opposing party sufferedprejudice as a result" (Strumpf vMassachusetts Mut. Life Ins. Co., 125 AD3d 1239, 1240 [2015] [citationomitted]; see Dinstber v AllstateIns. Co., 75 AD3d 957, 957-958 [2010]).
Here, apparently at some point after being served with defendants' counterclaims,plaintiff's former counsel transferred plaintiff's file to another firm, Bryan CaveLLP.[FN*] Afterdefendants refused to grant plaintiff's request for a courtesy extension of time toanswer—which defendants were well within their rights to do considering the timeto answer had already passed at the time the request was made—Bryan Cavesought a court order, pursuant to CPLR 3012 (d), indicating that it had been only recentlyretained and that it needed more time to review the file. No further informationconcerning the substitution of counsel or the transfer of the file was provided.
Although plaintiff's motion papers lacked specific details of the underlyingcircumstances, we discern no abuse of discretion in excusing its default. Certainly,motions such as this should not simply be granted for the asking, and our preference isfor more thorough motion practice. However, we do not find the request for an extensionby counsel, who was only recently retained, to be per se unreasonable, even absent theappreciated additional detail. Furthermore, in light of the brief delay preceding plaintiff'smotion, defendants' inability to identify any specific prejudice that would result shouldthe extension be granted and the public policy in favor of resolving matters on the merits,granting plaintiff's motion was an appropriate exercise of discretion (see Strumpf vMassachusetts Mut. Life Ins. Co., 125 AD3d at 1240; compare 333 Cherry LLC vNorthern Resorts, Inc., 66 AD3d 1176, 1177-1178 [2009]). Accordingly, weaffirm Supreme Court's order granting plaintiff's motion for an extension of time withinwhich to serve an answer to defendants' counterclaims and denying defendants' crossmotion for a default judgment.
McCarthy, J.P., Egan Jr. and Devine, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *:No notice of this changein attorneys, either formal or informal, appears in the record.