High Point Prop. Grp. Acquisition LLC v. Prof'l Settlement Corp.
| Decision Date | 05 October 2020 |
| Docket Number | Index No. 504691/2019 |
| Parties | HIGH POINT PROPERTY GROUP ACQUISITION LLC, Plaintiff, v. PROFESSIONAL SETTLEMENT CORPORATION ARTHUR GOODRICH & MICHELLE GOODRICH, Defendants. |
| Court | New York Supreme Court |
Decision and Order
Mot. Seq. 1, 2, 3, . . 5, 6
After oral argument on September 25, 2020, the following papers were read on this motion pursuant to CPLR 2219(a):
The plaintiff seeks default judgment against the defendants but has withdrawn its motion for specific performance under a contract of sale of real property and now seeks the return of its deposit. Defendants Professional Settlement Corporation and Defendants Goodridges respectively move to vacate their default, serve its answer and dismiss the action. There is also a motion to intervene brought by non-parties Wilfred Moseley, Oneil Mosely, Dennis Trevor Mosely and Jasmine Thompson based on their alleged interest in the real property. The complaint was served on defendants Arthur Goodridge and Michelle Goodridge on April 16, 2019 through conspicuous service, and on defendant Professional Settlement Corporation on March 28, 2019. These affidavits of service regarding defendants Goodridge were filed on April 23, 2019 and regarding defendant Professional Settlement Corporation was filed on April 1, 2019. All the defendants failed to timely serve answers. There is a related action Arthur and Michele Goodridge v Professional Settlement Corporation, Index No. 501018/2019. There is no motion to consolidate.
The original contract of sale, dated "March 2018" with a First Amendment to Contract of Sale dated June 5, 2018, was between plaintiff and defendant Professional Settlement Corporation and provided for the closing to occur August 31, 2018, or sixty days following evidence that the premises were vacant and would be delivered at closing vacant and receipt of confirmation of purchaser receiving fee simple title. Since the execution of the contract of sale, the premises were never vacant. Per the Order of the Hon. Dawn Jimenez-Salta, entered on April 16, 2019, Defendant Professional Settlement Corporation, who held title to the property in its name alone, was ordered to transfer two thirds of the ownership interest to defendants Arthur Goodridge and Michelle Goodridge. The proposed intervenors are alleged to be related to the decedent Lillian Goodridge. After Lillian Goodridge's demise, title was transferred to defendants Arthur Goodridge and Michelle Goodridge.
On a motion for leave to enter judgment against a defendant for the failure to answer or appear, a plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting the claim by an affidavit made by the party, and proof of the defendant's default (see CPLR 3215[f]; Mercury Cas. Co. v. Surgical Ctr. at Milburn, LLC, 65 A.D.3d 1102, 885 N.Y.S.2d 218; Matone v. Sycamore Realty Corp., 50 A.D.3d 978, 858 N.Y.S.2d 202).
A defendant who has failed to timely appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action, when opposing a motion for leave to enter judgment upon its failure to appear or answer and moving to extend the time to answer or to compel the acceptance of an untimely answer (see Fried v. Jacob Holding, Inc., 110 A.D.3d 56, 58, 970 N.Y.S.2d 260, 262; Ennis v. Lema, 305 A.D.2d 632, 633, 760 N.Y.S.2d 197). The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court (see Mid-Hudson Props., Inc. v. Klein, 167 A.D.3d 862, 864, 90 N.Y.S.3d 264; White v. Inc. Vill. of Hempstead, 41 A.D.3d 709, 710, 838 N.Y.S.2d 607, 608). Moreover, whether to grant such relief is discretionary (see Goldfarb v. Zhukov, 145 A.D.3d at 759, 43 N.Y.S.3d 135), and relief may be denied "where, for example, a defendant's failure to personally receive notice of the summons was a result of a deliberate attempt to avoid such notice" (Eugene Di Lorenzo, Inc., 67 N.Y.2d at 143)(see Stevens v. Stepanski, 164 A.D.3d 935, 937, 84 N.Y.S.3d 1, 3 [App. Div. 2d Dept. 2018]).
Although all the defendants were in default regarding the original complaint, and a motion for default judgment was returnable on July 15, 2019, the plaintiff amended its complaint on May 27, 2020 (NYCEF Doc. 49) which provided the defendants with additional time to answer. Whatever agreement defendant Professional Settlement Corporation may have believed regarding answering the complaint at its leisure pursuant to the March 28, 2019 email, it was required to timely answer after being served the amended complaint on May 27, 2020. "Generally, an amended complaint supersedes the original pleading, the defendant's original answer has no effect, and a new responsive pleading is substituted for the original answer (see Brooks Bros. v. Tiffany, 117 A.D. 470, 102 N.Y.S. 626; Rifkind v. Web IV Music, 67 Misc.2d 26, 323 N.Y.S.2d 326; cf. Volpe v. Manhattan Sav. Bank, 276 A.D. 782, 92 N.Y.S.2d 797; see also 3 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3025.12)" (Stella v. Stella, 92 A.D.2d 589, 459 N.Y.S.2d 478 [1983]). "The original complaint is no longer viable, inasmuch as the amended complaint 'takes the place of the original pleading' (internal citationsomitted)" (Golia v. Vieira, 162 A.D.3d 863, 80 N.Y.S.3d 297 [App. Div. 2018]). However, defendant Professional Settlement Corporation rejected the amended complaint on June 14, 2020. Notwithstanding defendant Professional Settlement Corporation's arguments to the...
To continue reading
Request your trial