U.S. Bank Trust, N.A. v Guerra

U.S. Bank Trust, N.A. v Guerra 2020 NY Slip Op 07420 Decided on December 9, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 9, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
JEFFREY A. COHEN
HECTOR D. LASALLE
ANGELA G. IANNACCI, JJ.
2019-05632
(Index No. 707294/14)

[*1]U.S. Bank Trust, N.A., etc., appellant,

v

Pedro Guerra, etc., et al., defendants, SunTrust Mortgage, Inc., respondent.

Friedman Vartolo LLP, New York, NY (Zachary Gold and Oran Schwager of counsel), for appellant.

McLaughlin & Stern, LLP, Great Neck, NY (James A. Bradley of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Rudolph E. Greco, Jr., J.), entered March 27, 2019. The order granted the motion of the defendant SunTrust Mortgage, Inc., pursuant to CPLR 3012(d) to extend its time to answer the complaint and to compel the plaintiff to accept its late answer, and denied the plaintiff's motion, inter alia, pursuant to CPLR 3215 for leave to enter a default judgment against the defendant SunTrust Mortgage, Inc.

ORDERED that the order is affirmed, with costs.

On June 6, 2017, the plaintiff in this mortgage foreclosure action served a supplemental summons and second amended complaint upon the defendant SunTrust Mortgage, Inc. (hereinafter SunTrust), by delivery to its registered agent for service of process. After unsuccessfully seeking an extension of time to answer the complaint from the plaintiff's counsel, SunTrust served an answer to the second amended complaint on December 7, 2017, which the plaintiff rejected as untimely.

Thereafter, SunTrust moved pursuant to CPLR 3012(d) to extend its time to answer the complaint and to compel the plaintiff to accept its late answer to the second amended complaint. The plaintiff opposed the motion and moved, inter alia, pursuant to CPLR 3215 for leave to enter a default judgment against SunTrust. In an order entered March 27, 2019, the Supreme Court granted SunTrust's motion and denied the plaintiff's motion. The plaintiff appeals.

Under the circumstances presented, the Supreme Court providently exercised its discretion in granting SunTrust's motion to extend its time to answer and to compel the plaintiff to accept its late answer, since SunTrust demonstrated that it had a reasonable excuse for serving an untimely answer and that it had a potentially meritorious defense (see Jennings v Queens Tribune Publs., LLC, 101 AD3d 1086, 1087). Moreover, the plaintiff was not prejudiced by the delay involved, SunTrust did not evince an intent to abandon its defense of the action, and public policy favors the resolution of cases on their merits (see id. at 1087).

In light of our determination, we need not reach the plaintiff's remaining contentions.

CHAMBERS, J.P., COHEN, LASALLE and IANNACCI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court