LLC v. Carroll Bailey, et al., appellants, et al., defendants.

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Supreme Court, Appellate Division, Second Department, New York.

Nationstar Mortgage, LLC, respondent, v. Carroll Bailey, et al., appellants, et al., defendants.

2017–02507

Decided: August 28, 2019

JOHN M. LEVENTHAL, J.P. HECTOR D. LASALLE BETSY BARROS VALERIE BRATHWAITE NELSON, JJ. Law Offices of Bruce Richardson, P.C., New York, NY, for appellants. Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, Bay Shore, N.Y. (Ruth O'Connor of counsel), for respondent.

Submitted—April 8, 2019

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Carroll Bailey and S & E Management, LLC, appeal from an order of the Supreme Court, Kings County (Donald Scott Kurtz, J.), dated January 9, 2017.  The order, insofar as appealed from, upon renewal, adhered to a prior determination in an order of the same court dated January 9, 2016, denying the separate motions of the defendants Carroll Bailey and S & E Management, LLC, pursuant to CPLR 3012(d) to compel the plaintiff to accept their respective answers.

ORDERED that the order dated January 9, 2017, is affirmed insofar as appealed from, with costs.

In February 2015, the plaintiff commenced this action against, among others, the defendants Carroll Bailey and S & E Management, LLC (hereinafter S & E), to foreclose a mortgage.  Neither Carroll nor S & E (hereinafter together the defendants) timely answered the complaint.  In April 2015, the defendants each served an answer, which the plaintiff rejected as untimely.  The defendants then separately moved pursuant to CPLR 3012(d) to compel the plaintiff to accept their respective answers.  In an order dated January 9, 2016, the Supreme Court denied both motions.  Subsequently, the defendants moved for leave to renew their prior motions.  In an order dated January 9, 2017, the court granted leave to renew but, upon renewal, adhered to its determination denying the prior motions.  The defendants appeal from so much of the order as adhered to the prior determination.

To extend the time to answer the complaint and to compel the plaintiff to accept an untimely answer as timely, a defendant must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action (see Aurora Loan Servs., LLC v. Movtady, 165 AD3d 1025, 1027;  Wells Fargo Bank, N.A. v. Singh, 153 AD3d 893, 893;  JPMorgan Chase Bank, N.A. v. Comfort Boampong, 145 AD3d 981, 982).

Here, upon renewal, the defendants failed to demonstrate a potentially meritorious defense to the action.  Contrary to their contention, the record does not reflect that the Supreme Court failed to consider their prior motion papers.  CPLR 2214(c) was amended, effective July 22, 2014, prior to the date of the defendants' renewal motion, to provide that in an e-filed action, absent a court directive to the contrary, a party “need not include copies of papers that were filed previously electronically with the court, but may make reference to them, giving the docket numbers on the e-filing system” (see L 2014, ch 109, § 1, as amended).  Here, the defendants made reference to the electronic docket numbers for the prior motions.  Thus, the prior motion papers were before the Supreme Court (see Leary v. Bendow, 161 AD3d 420, 420).  However, nothing in the prior motion papers served to demonstrate a potentially meritorious defense to the action.

Accordingly, we agree with the Supreme Court's determination, upon renewal, to adhere to its prior determination denying the defendants' separate motions to compel the plaintiff to accept their respective answers.

LEVENTHAL, J.P., LASALLE, BARROS and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court