HSBC Bank USA, Nat'l Ass'n v. Izzo

• Citation: 109 N.Y.S.3d 886 (Mem),177 A.D.3d 648
• Decision Date: 06 November 2019
• Docket Number: Index No. 35362/09,2017–08533
• Parties: HSBC BANK USA, NATIONAL ASSOCIATION, etc., Appellant, v. Rose IZZO, et al., Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

177 A.D.3d 648

109 N.Y.S.3d 886 (Mem)

HSBC BANK USA, NATIONAL ASSOCIATION, etc., Appellant,

v.Rose IZZO, et al., Respondents, et al., Defendants.

2017–08533

Index No. 35362/09

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

Submitted—June 18, 2019

November 6, 2019

RAS Boriskin, LLC, Westbury, N.Y. (Joseph F. Battista of counsel), for appellant.

Young Law Group, PLLC, Bohemia, N.Y. (Ivan E. Young of counsel), for respondents.

MARK C. DILLON, J.P., JEFFREY A. COHEN, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Suffolk County (C. Randall Hinrichs, J.), dated June 12, 2017. The order granted the motion of the defendants Rose Izzo and Anthony Izzo pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

In September 2009, the plaintiff commenced this action to foreclose a mortgage against Rose Izzo and Anthony Izzo (hereinafter together the Izzos), among others. After the Izzos failed to timely appear or answer, the Supreme Court granted the plaintiff's motion for an order of reference. On March 30, 2011, the parties entered into a stipulation vacating the order of reference and providing the Izzos with 30 days to interpose an answer. On April 27, 2011, the Izzos served an answer. In May 2012, the Izzos moved to amend their answer and to serve discovery demands, and the court granted the motion in an order dated March 7, 2013. The Izzos' amended answer with counterclaims and discovery demands were deemed served upon the plaintiff as of March 13, 2013.

In November 2015, the Izzos served the plaintiff with a notice and demand pursuant to CPLR 3216, demanding resumption of the prosecution of the action and the service and filing of a note of issue within 90 days of receipt of the notice and demand (hereinafter the 90–day notice). The plaintiff did not serve and file a note of issue and did not move to vacate the 90–day notice or to extend the 90–day period. In June 2016, the Izzos moved pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against them. The Supreme Court granted the motion, and the plaintiff appeals.

Where, as here, a plaintiff is served with a 90–day notice pursuant to CPLR 3216, the plaintiff is required either to timely file a note of issue or move, before the default date, for an extension of time pursuant to CPLR 2004 (see Deutsche Bank Natl. Trust Co. v. Inga, 156 A.D.3d 760, 760, 67 N.Y.S.3d 264 ; Furrukh v. Forest Hills Hosp., 107 A.D.3d 668, 669, 966 N.Y.S.2d 497 ). The plaintiff failed to do either within the 90–day period. Therefore, to excuse the default, the plaintiff was required to demonstrate a justifiable excuse for its failure to timely file either a note of issue or a motion to vacate the demand or extend the 90–day period, as well as a potentially meritorious cause of action (see Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460 ; Deutsche Bank Natl. Trust Co. v. Inga, 156 A.D.3d at 761, 67 N.Y.S.3d 264 ; Furrukh v. Forest Hills Hosp., 107 A.D.3d at 669, 966 N.Y.S.2d 497 ).

The determination of what constitutes a reasonable excuse lies within the court's discretion (see Star Indus., Inc. v. Innovative Beverages, Inc., 55 A.D.3d 903, 904, 866 N.Y.S.2d 357 ; Santiago v. New York City Health & Hosps. Corp., 10 A.D.3d 393, 394, 780 N.Y.S.2d 764 ). "Although the court has the discretion to accept law office failure as a justifiable excuse (see CPLR 2005 ), a claim of law office failure should be supported by a ‘detailed and credible’ explanation of the default at issue" ( Byers v. Winthrop Univ. Hosp., 100 A.D.3d 817, 818, 955 N.Y.S.2d 105, quoting Henry v. Kuveke, 9 A.D.3d 476, 479, 781 N.Y.S.2d 114 ; see Gironda v. Katzen, 19 A.D.3d 644, 645, 798 N.Y.S.2d 109 ). Law office failure does not constitute a justifiable excuse where there is a pattern of willful default and neglect (see Star Indus., Inc. v. Innovative Beverages, Inc., 55 A.D.3d at 904, 866 N.Y.S.2d 357 ; Santiago v. New York City Health & Hosps. Corp., 10 A.D.3d at 394, 780 N.Y.S.2d 764 ), or where allegations of law office failure...