| U.S. Bank N.A. v Gonzalez |
| 2012 NY Slip Op 06596 [99 AD3d 694] |
| October 3, 2012 |
| Appellate Division, Second Department |
| U.S. Bank National Association, Appellant, v JavierGonzalez, Respondent, et al., Defendants. |
—[*1] John C. Gray, Brooklyn, N.Y. (Sara L. Manaugh of counsel), for respondent.
In an action to foreclose a mortgage, the plaintiff appeals from (1) an order of the SupremeCourt, Kings County (Saitta, J.), dated April 22, 2010, which granted that branch of the motionof the defendant Javier Gonzalez which was pursuant to CPLR 3211 to dismiss the complaintinsofar as asserted against him, and (2) an order of the same court dated June 8, 2010, whichgranted that branch of the motion of the defendant Javier Gonzalez which was for the impositionof sanctions upon the plaintiff.
Ordered that the order dated April 22, 2010, is reversed, on the law, without costs ordisbursements, and that branch of the motion of the defendant Javier Gonzalez which waspursuant to CPLR 3211 to dismiss the complaint insofar as asserted against him is denied; and itis further,
Ordered that the order dated June 8, 2010, is affirmed, without costs or disbursements.
The plaintiff commenced this action to foreclose a mortgage on property owned by thedefendant Javier Gonzalez. Service upon Gonzalez of copies of the summons and complaintpursuant to CPLR 308 (2) was completed on March 6, 2009, and Gonzalez was required toanswer the complaint, appear, or move with respect thereto within 30 days of that date(see CPLR 320 [a]; 3211 [e]). Gonzalez failed to do so, but by notice of motion datedOctober 21, 2009, he moved pursuant to CPLR 3211 to dismiss the complaint insofar as assertedagainst him. Gonzalez also moved for the imposition of sanctions upon the plaintiff pursuant to22 NYCRR 130-1.1.
Gonzalez did not request an extension of time within which to serve and file a motionpursuant to CPLR 3211 to dismiss the complaint insofar as asserted against him, and he did notattempt to show good cause for his delay in making the motion, or even address the untimelinessof the motion (see CPLR 2004). Moreover, Gonzalez has not sought an extension of timeto answer or appear in this action (see CPLR 3012 [d]). Accordingly, the Supreme Courtshould have denied, as untimely, that branch of Gonzalez's motion which was pursuant to CPLR3211 to dismiss the [*2]complaint insofar as asserted against him(see Holubar v Holubar, 89 AD3d802 [2011]; McGee v Dunn, 75AD3d 624, 625 [2010]).
However, in light of the fact that the plaintiff, inter alia, provided various affirmations andaffidavits wherein it made a certain representation that proved to be false, and persisted inmaking that representation after it knew or should have known it to be false, the Supreme Courtprovidently exercised its discretion in granting that branch of Gonzalez's motion which was forthe imposition of sanctions upon the plaintiff (see 22 NYCRR 130-1.1 [c] [3]; Schwab v Phillips, 78 AD3d 1036,1036-1037 [2010]). Dillon, J.P., Lott, Roman and Cohen, JJ., concur.