| Holubar v Holubar |
| 2011 NY Slip Op 08123 [89 AD3d 802] |
| November 9, 2011 |
| Appellate Division, Second Department |
| Joel Holubar et al., Appellants, v Michelle Holubar,Respondent, et al., Defendant. |
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In an action for a judgment declaring, inter alia, that a certain security agreement is amortgage, the plaintiffs appeal from an order of the Supreme Court, Putnam County (Nicolai, J.),dated April 14, 2010, which granted the cross motion of the defendant Michelle Holubar, amongother things, pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted againsther.
Ordered that the order is reversed, on the law, with costs, and the cross motion of thedefendant Michelle Holubar to dismiss the complaint insofar as asserted against her is denied.
The defendant Michelle Holubar (hereinafter the defendant) was in default for failing totimely answer the complaint or appear in this action. Thus, the defendant's cross motion todismiss the complaint insofar as asserted against her was untimely (see CPLR 308 [2];320 [a]) and should not have been considered. To avoid the entry of a default judgment againsther, the defendant was required to provide both a potentially meritorious defense and areasonable excuse for her delay in answering or appearing (see CPLR 5015 [a] [1];Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; McGee v Dunn, 75 AD3d 624,625 [2010]; DeStaso v Bottiglieri,52 AD3d 453, 454 [2008]). The defendant did not request an extension of time to answer orappear (see CPLR 2004). In granting the defendant's untimely motion to dismiss thecomplaint insofar as asserted against her, the Supreme Court improperly, in effect, excused thedefendant's default in the absence of a request for such relief (see McGee v Dunn, 75AD3d at 625; Zino v Joab Taxi,Inc., 20 AD3d 521, 522 [2005]; see also May v Hartsdale Manor Owners Corp., 73 AD3d 713[2010]; Mastroianni v Rallye GlenCove, LLC, 59 AD3d 686, 687 [2009]). Accordingly, the Supreme Court erred ingranting the defendant's cross motion to dismiss the complaint insofar as asserted against her.
To the extent the plaintiffs raise arguments on appeal regarding their motion for [*2]summary judgment, that motion was not addressed by the SupremeCourt and, thus, remains pending and undecided (see Katz v Katz, 68 AD2d 536,542-543 [1979]). Rivera, J.P., Eng, Belen and Austin, JJ., concur.