Preview
FILED: SUFFOLK COUNTY CLERK 11/13/2023 02:58 PM INDEX NO. 600753/2023
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/13/2023
MEMO DECISION & ORDER
NDEX No. 60075312023
SUPREME COURT - STATE OF NEW YORK
IAS PART 33 - SUFFOLK COUNTY
PRESENT:
Hon. THOMAS F. WHELAN MOTION DATE 612123
Justice of the Supreme Court SUBMIT DATE 918123
Mot. Seq. # 001 - MD
CDISP Y N X
x
FIFTH THIRD BANK, NATIONAL ASSOCIATION, : ROBERTSON,ANSCHUTZ,
: SCHNEID CRANE &
Plaintiff. : PARTNERS,PLLC
: Attys for Plaintiff
-against- : 900 Merchants Concourse
: Suite 310
9 COMMODORE CIRCLE, LLC; EDWIN STINVIL; THE : Westbury, NY 11590
BOARD OF MANAGERS OF STONINGTON AT PORT
JEFFERSON COMDOMINruM 1; BOARD OF STIM & WARMUTH, P.C.
DIRECTORS OF STONINGTON AT PORT JEFFERSON Attys for Defendant
HOME OWNERS ASSOCIATION; CLERK OF THE 9 Commodore Circle. LLC
SUFFOLK COTINTY TRAFFIC & PARKING 2 Eighth Street
VIOLATIONS AGENCY Farmingville, NY I1738
"JOHN DOE #1" through "JOHN DOE #12" the last twelve
names being fictitious and unknown to plaintiff, the persons
or parties intended being the tenants, occupants, persons or
corporations, if any, having or claiming an interest irt or lien
upon the premises, described in the complaint,
Defendants.
x
Upon the following papers read on this motions for leave to file a late ansu'er ; Notice of Motion/Order
to Sho\,r' Cause and supporting papers NYSCEF Doc. 25 - 35 ; Notice of Cross Motion and supporting papers: _;
Opposing papers NYSCEF Doc. 39-40 ; Reply papers_!l!Qffpg9.]Ll; Other_; (and afterhearir€
@)itis
ORDERED that the motion (#001) by defendant 9 Commodore Circle, LLC for leave to file
a late answer is denied; and it is further
1 of 3
FILED: SUFFOLK COUNTY CLERK 11/13/2023 02:58 PM INDEX NO. 600753/2023
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/13/2023
Fifth Third Bank v 9 Commodore
lndex No. 600753/2023
Page 2
ORDERED lhat movant is directed to file a notice of entry within five days of receipt of this
Order pursuant to 22 NYCRR g 202.5-b(hx2).
This is an action to foreclose a mortgage on residential property located in Port Jefferson
Station. In essence, on January 8, 2015, Edwin Stinvil bonowed $232,750.00 from the plaintifls
predecessor in interest and executed a promissory note and a mortgage. Since June 1, 2019, no
payments have been made on the monthly installments due and owing. This action was later
commenced by filing on January 10, 2023. On April24,2023, defendant 9 Commodore Circle, LLC
(hereinafter "9 Commodore"), title owner of the property, filed an answer asserting seventeen
affrrmative defenses. The plaintiffreiected the answer as r.rntimely byNotice of Rejection dated April
2'7 ,2023.The instant motion (#001) followed. 9 Commodore seeks to vacate its default in answering
the complaint pursuant to CPLR 317, CPLR $5015(a)(1), CPLR $5015(a)(4), CPLR 92001, and
CPLR $2005 and, upon such vacatur, granting the movant extension of time to serve its answer or,
alternatively, compelling the plaintilf to accept the answer previously seryed. The plaintiff opposes
the motion, and the defendant has filed a reply.
"A defendant who has lailed to timely answer a complaint and seeks to compel the plaintiff
to accept an untimely answer must provide a reasonable excuse for the delay in answering and
demonstrate a potentially meritorious defense to the action" (Moonachi,Inc. v U.S. Bank Tr., N.A.,
213 AD3d 838, 838-39, 184 NYS3d 112 [2d Dept 20231citing Nationstar Mtge,, LLC v Farrell,
172 AD3d 1077, 98 NYS3d 479 [2dDept2019l. The determination of what constitutes a reasonable
excuse lies within the sound discretion ofthe Court (see Rosario v Naranio,165 AD3d 860, 861,
84 NYS3d 556, 557 [2d Dept 20181, citingHarcztark v Drive Variefl,,Inc.,21 AD3d876,876-77,
800 NYS2d 613,614 [2d Dept 20051). If the movant fails "to proffer a reasonable excuse for their
delay in answering the complaint, it is not necessary to determine whether they demonstrated a
potentially meritorious defense to the action" (Green Tree Servicing, LLC v l/erss, 180 AD3d 654,
655, 1 15 NYS3d 693 [2dDept2020l, citing HSBC Bank USA, N.A. v. Smart, 155 AD3d 843, 63
NYS3d 700 [2d Dept 20171).
Pursuant to CPLR $ 31 I (a)( 1), a business corporation may be serwed pursuant to New York
Business Corporation Law $ 306, which dictates that seruice ofprocess on a corporation is complete
when duplicate copies ofthe summons and complaint are delivered to the Secretary of State and the
appropriate fee is paid (BCL S 306[b][f; Perkins v. 686 Halsey Footl Corp.,36 AD3d 881, 881,
829 NYS2d 185, 186 [2d Dept 2007] [citations omitted]). "Service of process on a corporate
defendant by serving the summons and complaint on the Secretary of State pursuant to Business
Corporation Law $ 306 is valid service" (Perkins v 686 Halsey Food Corp.,36 AD3d at881, supra,
quoting Sltimel v 5 S. Fulton Ave. Corp., 1l AD3d 527 ,527 ,783 NYS2d 54, 55 [2d Dept 2004]).
"Ordinarily, the affidavit ofaprocess server constitutes a prima facie showing ofproper service" ("IP
Morgan Chase Bank, NA v Adventure Corp., 155 AD3d 1013, 1014, 65 NYS3d 531,533 [2d Dept
20171, quoting FV-[, Inc. v Reid, 138 AD3d 922,923, 31 NYS3d 119, 120 [2d Dept 2016]).
2 of 3
FILED: SUFFOLK COUNTY CLERK 11/13/2023 02:58 PM INDEX NO. 600753/2023
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/13/2023
Fifth Third Bank v 9 Commodore
Tndex No. 6001 5112023
Page 3
Here, the affidavit of service demonstrates that the plaintiff properly effected service of
process upon 9 Commodore on January l7,2023 by delivering two copies of the summons and
complaint to the Secretary of State and paying the associated fee (see BCL $ 306tbl[t ]; (Perkins v
686 Halsey Food Corp.,36 AD3d at 881, supra). As such, pursuant to Business Corporation Law
g 306 and CPLR $320(a), the defendant had 30 days from completion ofservice (i.e., until February
16,2023) fo answer the complaint or otherwise appear in the action. As the movant demonstrates,
however, the summons and complaint were not mailed to 9 Commodore by the Secretary of State
until over almost three months later, on April 7,2023. As this was well after 9 Commodore's
deadline to answer or otherwise respond, the movant opines, there exists a reasonable excuse.
Under the unique circumstances herein, the Courl finds that 9 Commodore has set forth a
reasonable excuse for delay in serving its answer. The Court fuilher finds, however, that 9
Commodore has failed to set forth a meritorious defense. The movant is "a stranger to the transaction
between the mofigagee and mortgagor" (NYSCEF Doc. No. 35, page 3), and, as such, lacks standing
to bootstrap into any claim or delense which would be personal to the mortgagor. 9 Commodore
is not subject to the rights and obligations ofthe promissory note and moftgage, yet here seeks to
advance several claims and defenses which would be personal to the borrower. Nevertheless, the
movant has set forth merely conclusory assertions, and such is insufficient to demonstrate a
meritorious defense (Matter of Mongitore v Linz,g5 AD3d 1 130, 1 13 1 , 943 NYS 2d 899 [2d Dept
20121, citing Matter of Atkin v Atkin, 55 AD3d 905, 865 NYS2d 577 [2d Dept 2008)].
Finally, the Court notes that the movant's reliance upon CPLR 317, 5015(a)(1) and
5015(aX4) is in error, as no judgment or order has been entered in this case and therefbre cannot be
vacated.
For these reasons, the defendant's motion (#001) is denied.
DATED: ll 1 /cs THO S
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Preview
FILED: SUFFOLK COUNTY CLERK 11/13/2023 02:58 PM INDEX NO. 600753/2023 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/13/2023 MEMO DECISION & ORDER NDEX No. 60075312023 SUPREME COURT - STATE OF NEW YORK IAS PART 33 - SUFFOLK COUNTY PRESENT: Hon. THOMAS F. WHELAN MOTION DATE 612123 Justice of the Supreme Court SUBMIT DATE 918123 Mot. Seq. # 001 - MD CDISP Y N X x FIFTH THIRD BANK, NATIONAL ASSOCIATION, : ROBERTSON,ANSCHUTZ, : SCHNEID CRANE & Plaintiff. : PARTNERS,PLLC : Attys for Plaintiff -against- : 900 Merchants Concourse : Suite 310 9 COMMODORE CIRCLE, LLC; EDWIN STINVIL; THE : Westbury, NY 11590 BOARD OF MANAGERS OF STONINGTON AT PORT JEFFERSON COMDOMINruM 1; BOARD OF STIM & WARMUTH, P.C. DIRECTORS OF STONINGTON AT PORT JEFFERSON Attys for Defendant HOME OWNERS ASSOCIATION; CLERK OF THE 9 Commodore Circle. LLC SUFFOLK COTINTY TRAFFIC & PARKING 2 Eighth Street VIOLATIONS AGENCY Farmingville, NY I1738 "JOHN DOE #1" through "JOHN DOE #12" the last twelve names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest irt or lien upon the premises, described in the complaint, Defendants. x Upon the following papers read on this motions for leave to file a late ansu'er ; Notice of Motion/Order to Sho\,r' Cause and supporting papers NYSCEF Doc. 25 - 35 ; Notice of Cross Motion and supporting papers: _; Opposing papers NYSCEF Doc. 39-40 ; Reply papers_!l!Qffpg9.]Ll; Other_; (and afterhearir€ @)itis ORDERED that the motion (#001) by defendant 9 Commodore Circle, LLC for leave to file a late answer is denied; and it is further 1 of 3 FILED: SUFFOLK COUNTY CLERK 11/13/2023 02:58 PM INDEX NO. 600753/2023 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/13/2023 Fifth Third Bank v 9 Commodore lndex No. 600753/2023 Page 2 ORDERED lhat movant is directed to file a notice of entry within five days of receipt of this Order pursuant to 22 NYCRR g 202.5-b(hx2). This is an action to foreclose a mortgage on residential property located in Port Jefferson Station. In essence, on January 8, 2015, Edwin Stinvil bonowed $232,750.00 from the plaintifls predecessor in interest and executed a promissory note and a mortgage. Since June 1, 2019, no payments have been made on the monthly installments due and owing. This action was later commenced by filing on January 10, 2023. On April24,2023, defendant 9 Commodore Circle, LLC (hereinafter "9 Commodore"), title owner of the property, filed an answer asserting seventeen affrrmative defenses. The plaintiffreiected the answer as r.rntimely byNotice of Rejection dated April 2'7 ,2023.The instant motion (#001) followed. 9 Commodore seeks to vacate its default in answering the complaint pursuant to CPLR 317, CPLR $5015(a)(1), CPLR $5015(a)(4), CPLR 92001, and CPLR $2005 and, upon such vacatur, granting the movant extension of time to serve its answer or, alternatively, compelling the plaintilf to accept the answer previously seryed. The plaintiff opposes the motion, and the defendant has filed a reply. "A defendant who has lailed to timely answer a complaint and seeks to compel the plaintiff to accept an untimely answer must provide a reasonable excuse for the delay in answering and demonstrate a potentially meritorious defense to the action" (Moonachi,Inc. v U.S. Bank Tr., N.A., 213 AD3d 838, 838-39, 184 NYS3d 112 [2d Dept 20231citing Nationstar Mtge,, LLC v Farrell, 172 AD3d 1077, 98 NYS3d 479 [2dDept2019l. The determination of what constitutes a reasonable excuse lies within the sound discretion ofthe Court (see Rosario v Naranio,165 AD3d 860, 861, 84 NYS3d 556, 557 [2d Dept 20181, citingHarcztark v Drive Variefl,,Inc.,21 AD3d876,876-77, 800 NYS2d 613,614 [2d Dept 20051). If the movant fails "to proffer a reasonable excuse for their delay in answering the complaint, it is not necessary to determine whether they demonstrated a potentially meritorious defense to the action" (Green Tree Servicing, LLC v l/erss, 180 AD3d 654, 655, 1 15 NYS3d 693 [2dDept2020l, citing HSBC Bank USA, N.A. v. Smart, 155 AD3d 843, 63 NYS3d 700 [2d Dept 20171). Pursuant to CPLR $ 31 I (a)( 1), a business corporation may be serwed pursuant to New York Business Corporation Law $ 306, which dictates that seruice ofprocess on a corporation is complete when duplicate copies ofthe summons and complaint are delivered to the Secretary of State and the appropriate fee is paid (BCL S 306[b][f; Perkins v. 686 Halsey Footl Corp.,36 AD3d 881, 881, 829 NYS2d 185, 186 [2d Dept 2007] [citations omitted]). "Service of process on a corporate defendant by serving the summons and complaint on the Secretary of State pursuant to Business Corporation Law $ 306 is valid service" (Perkins v 686 Halsey Food Corp.,36 AD3d at881, supra, quoting Sltimel v 5 S. Fulton Ave. Corp., 1l AD3d 527 ,527 ,783 NYS2d 54, 55 [2d Dept 2004]). "Ordinarily, the affidavit ofaprocess server constitutes a prima facie showing ofproper service" ("IP Morgan Chase Bank, NA v Adventure Corp., 155 AD3d 1013, 1014, 65 NYS3d 531,533 [2d Dept 20171, quoting FV-[, Inc. v Reid, 138 AD3d 922,923, 31 NYS3d 119, 120 [2d Dept 2016]). 2 of 3 FILED: SUFFOLK COUNTY CLERK 11/13/2023 02:58 PM INDEX NO. 600753/2023 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/13/2023 Fifth Third Bank v 9 Commodore Tndex No. 6001 5112023 Page 3 Here, the affidavit of service demonstrates that the plaintiff properly effected service of process upon 9 Commodore on January l7,2023 by delivering two copies of the summons and complaint to the Secretary of State and paying the associated fee (see BCL $ 306tbl[t ]; (Perkins v 686 Halsey Food Corp.,36 AD3d at 881, supra). As such, pursuant to Business Corporation Law g 306 and CPLR $320(a), the defendant had 30 days from completion ofservice (i.e., until February 16,2023) fo answer the complaint or otherwise appear in the action. As the movant demonstrates, however, the summons and complaint were not mailed to 9 Commodore by the Secretary of State until over almost three months later, on April 7,2023. As this was well after 9 Commodore's deadline to answer or otherwise respond, the movant opines, there exists a reasonable excuse. Under the unique circumstances herein, the Courl finds that 9 Commodore has set forth a reasonable excuse for delay in serving its answer. The Court fuilher finds, however, that 9 Commodore has failed to set forth a meritorious defense. The movant is "a stranger to the transaction between the mofigagee and mortgagor" (NYSCEF Doc. No. 35, page 3), and, as such, lacks standing to bootstrap into any claim or delense which would be personal to the mortgagor. 9 Commodore is not subject to the rights and obligations ofthe promissory note and moftgage, yet here seeks to advance several claims and defenses which would be personal to the borrower. Nevertheless, the movant has set forth merely conclusory assertions, and such is insufficient to demonstrate a meritorious defense (Matter of Mongitore v Linz,g5 AD3d 1 130, 1 13 1 , 943 NYS 2d 899 [2d Dept 20121, citing Matter of Atkin v Atkin, 55 AD3d 905, 865 NYS2d 577 [2d Dept 2008)]. Finally, the Court notes that the movant's reliance upon CPLR 317, 5015(a)(1) and 5015(aX4) is in error, as no judgment or order has been entered in this case and therefbre cannot be vacated. For these reasons, the defendant's motion (#001) is denied. DATED: ll 1 /cs THO S 3 of 3