Giordano v Duffy

[*1] Giordano v Duffy 2020 NY Slip Op 50797(U) Decided on July 10, 2020 Supreme Court, New York County Lebovits, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 10, 2020
Supreme Court, New York County

Dorothy Giordano, Plaintiff,

against

Patrick Duffy, ENDEAVOR LIFE SCIENCES, LLC, JILL F. SPIELBERG, ESQUIRE, THE LAW FIRM OF HAROLD, SALANT, STRASSFIELD & SPIELBERG, JOHN AND JANE DOES 1-10, JOHN DOE CORPORATIONS 1-10, and OTHER JOHN DOE ENTITIES 1-10, Defendants.



159985/2019



Lucas and Cavalier, LLC, Philadelphia, PA (Sean L. Phelan of counsel), for plaintiff.

Herrick, Feinstein LLP, New York, NY (William R. Fried and Jina Moon of counsel), for defendant Endeavor Life Sciences, LLC.
Gerald Lebovits, J.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 18, 19, 20, 21, 22, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42. 43, 44, 45, 46

were read on this motion to DISMISS

This action relates to $1.4 million in money transferred by non-party Wynn Housel to defendant Patrick Duffy over an 11-month period, in exchange for 12 promissory notes executed by Duffy. Housel is the ex-husband of plaintiff Giordano; Housel retained defendant Jill F. Spielberg and her law firm, defendant Harold, Salant, Strassfield & Spielberg, to handle his divorce from plaintiff.

Plaintiff has alleged that the $1.4 million at issue is marital property, rather than being solely Housel's to spend. Plaintiff also has alleged that Housel and Duffy (aided and abetted by Spielberg and her law firm) wrongfully used that money to establish defendant Endeavor Life Sciences, LLC. Plaintiff has asserted claims against defendants for fraud, conversion, unjust enrichment, and other related causes of action.

Endeavor now moves to dismiss plaintiff's claims against it under CPLR 3211 and 3016 (b). The motion is denied as untimely.

Plaintiff served her complaint on defendant Endeavor on November 1, 2019. (See NYSCEF No. 5; Limited Liability Company Law § 303 [a].) Endeavor had 30 days from service to answer or move to dismiss. (See CPLR 320 [a], 3211 [e].) Since the last day of that period fell on a Sunday, Endeavor's deadline was December 2, 2019. (See General Construction Law § 25-a.) Endeavor's motion to dismiss, however, was not filed until December 20, 2019—18 days late. (See NYSCEF No. 18.)

Endeavor did not move for an extension of time to answer under CPLR 3012 (d) or for leave to appear untimely under CPLR 317. And Endeavor has not provided an excuse for its default. Instead, it asserts that its claims are meritorious and that its delay in moving to dismiss did not prejudice plaintiff. That is not sufficient. (See Oteri v Oteri-Harkins, 183 AD3d 902, 915 [2d Dept 2020] [affirming denial of untimely motion to dismiss where "defendants did not seek relief from their default or demonstrate a reasonable excuse for their default"]; McGee v Dunn, 75 AD3d 624, 625 [2d Dept 2010] [reversing grant of untimely motion to dismiss].)

Endeavor misplaces its reliance on Riddick v City of New York (4 AD3d 242, 245 [1st Dept 2004]). That decision concerned a motion for summary judgment under CPLR 3212, not a pre-answer motion to dismiss under CPLR 3211. Additionally, Riddick's timeliness holding was based on the panel's view that the summary-judgment motion in that case was meritorious and that movant's delay had not prejudiced the plaintiff—rationales the Court of Appeals has since expressly rejected in the summary-judgment context. (See Brill v City of NY, 2 NY3d 648, 652 [2004].)

Accordingly, it is hereby

ORDERED that Endeavor Life Sciences' motion to dismiss under CPLR 3211 (a) (1) and (a) (7) is denied.