| NYCTL 2009-A Trust v Kings Hwy. Realty Co. |
| 2017 NY Slip Op 00995 [147 AD3d 866] |
| February 8, 2017 |
| Appellate Division, Second Department |
[*1]
| NYCTL 2009-A Trust et al., Respondents, v KingsHighway Realty Co., Appellant, et al., Defendants. |
Anthony M. Bramante, Brooklyn, NY, for appellant.
Rosicki, Rosicki & Associates P.C., Plainview, NY (Kenneth Sheehan and MelissaKubit of counsel), for respondents.
In an action to foreclose a tax lien, the defendant Kings Highway Realty Co., appeals, aslimited by its brief, from so much of an order of the Supreme Court, Kings County (Graham, J.),dated May 20, 2015, as granted that branch of the plaintiffs' motion which was for an order ofreference upon its failure to appear or answer the amended complaint.
Ordered that the order is reversed insofar as appealed from, on the law and in the exercise ofdiscretion, with costs, that branch of the plaintiffs' motion which was for an order of reference isdenied, a subsequent order of the Supreme Court, Kings County, dated November 7, 2014, isvacated, and the amended complaint is dismissed as abandoned pursuant to CPLR 3215 (c).
In November 2010, the plaintiffs commenced this action against, among others, thedefendant Kings Highway Realty Co. (hereinafter the appellant) to foreclose a tax lien which hadbeen filed against real property owned by the appellant. In August 2011, the plaintiffs moved forleave to amend the complaint. The appellant had not answered the complaint. On the return dateof the motion for leave to amend the complaint, counsel for the plaintiffs and for the appellantappeared. The Supreme Court, in an order dated November 7, 2011, granted the plaintiffs' motionand extended the appellant's time to answer to November 30, 2011.
In December 2011, the plaintiffs served the appellant with copies of the supplementalsummons and amended complaint. Based upon the date of service of the amended complaint, theappellant had until January 11, 2012, to answer the amended complaint. The appellant failed toanswer by that date.
In February 2014, more than two years after the appellant had defaulted in answering theamended complaint, the plaintiffs moved for the appointment of a referee to compute the amountdue on the tax lien and to amend the caption of the action. The appellant opposed the motion onthe ground that the amended complaint should be dismissed since the plaintiffs failed to seekleave to enter a default judgment within one year of its default as required by CPLR 3215 (c). Byorder dated November 7, 2014, the Supreme Court granted that branch of the plaintiffs' motionwhich was for an order of reference. Subsequently, the court issued the order appealed from,which granted the plaintiffs' motion.
[*2] Pursuant toCPLR 3215 (c), "[i]f the plaintiff fails to take proceedings for the entry of judgment within oneyear after [a defendant's] default, the court shall not enter judgment but shall dismiss thecomplaint as abandoned . . . unless sufficient cause is shown why the complaintshould not be dismissed." "Sufficient cause" requires a showing of a reasonable excuse for thedelay in timely moving for leave to enter a default judgment, plus a demonstration that the causeof action is potentially meritorious (seeMaspeth Fed. Sav. & Loan Assn. v Brooklyn Heritage, LLC, 138 AD3d 793, 793[2016]; Ryant v Bullock, 77 AD3d811, 811 [2010]; Solano vCastro, 72 AD3d 932, 932-933 [2010]; 115-41 St. Albans Holding Corp. v Estate of Harrison, 71 AD3d653, 653 [2010]). "The determination of whether an excuse is reasonable in any giveninstance is committed to the sound discretion of the motion court" (Giglio v NTIMP, Inc., 86 AD3d301, 308 [2011]; see Maspeth Fed. Sav. & Loan Assn. v Brooklyn Heritage,LLC, 138 AD3d at 793; Pipinias v J.Sackaris & Sons, Inc., 116 AD3d 749, 752 [2014]). However, "reversal iswarranted if that discretion is improvidently exercised" (Butindaro v Grinberg, 57 AD3d 932, 932 [2008]; see Pipinias vJ. Sackaris & Sons, Inc., 116 AD3d at 752).
Here, the plaintiffs did not seek leave to enter a judgment against the appellant within theone-year period following its default. The appellant is correct that the plaintiffs failed to offer areasonable excuse for their delay in seeking a default judgment after it did not respond to theamended complaint (see Baruch vNassau County, 134 AD3d 658, 659 [2015]; Staples v Jeff Hunt Devs., Inc., 56 AD3d 459, 460 [2008]). Theaffidavit of the agent of the lien servicer which was submitted by the plaintiffs in support of theirmotion was sworn to on August 28, 2012, prior to the expiration of the one-year period set forthin CPLR 3215 (c), and the affidavit demonstrated that transfer of the servicing of the lienoccurred in June 2011. The plaintiffs contended that their delay should be excused because therewas a new servicer of the lien subsequent to the service of the amended complaint and theyneeded time to obtain the affidavit of merit necessary to move for an order of reference. Thiscontention was refuted by their own submissions, however, because the amended complaint wasserved in December 2011 (see Baruch v Nassau County, 134 AD3d at 659).
The plaintiffs' remaining contentions are without merit or need not be considered in light ofour determination.
Accordingly, the Supreme Court should have denied that branch of the plaintiffs' motionwhich was for an order of reference and dismissed the amended complaint as abandonedpursuant to CPLR 3215 (c). Austin, J.P., Cohen, Maltese and Duffy, JJ., concur.