HSBC Bank USA v. Pantel

• Decision Date: 17 August 2022
• Docket Number: 2021–00286,Index No. 59123/17
• Citation: 208 A.D.3d 643,173 N.Y.S.3d 608
• Parties: HSBC BANK USA, etc., appellant, v. Marc PANTEL, etc., et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

208 A.D.3d 643
173 N.Y.S.3d 608

HSBC BANK USA, etc., appellant,
v.
Marc PANTEL, etc., et al., respondents, et al., defendants.

2021–00286
Index No. 59123/17

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

Submitted—May 2, 2022
August 17, 2022

173 N.Y.S.3d 609

Logs Legal Group LLC, Rochester, NY (Ellis M. Oster of counsel), for appellant.

Reich Reich & Reich, P.C., White Plains, NY (Nicholas A. Pasalides of counsel), for respondents.

FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

208 A.D.3d 643

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Westchester County (Lawrence H. Ecker, J.), dated June 4, 2020. The order granted the motion of the defendants Marc Pantel and Carol Pantel pursuant to CPLR 3012(d) to compel the plaintiff to accept their late answer.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants Marc Pantel and Carol Pantel pursuant to CPLR 3012(d) to compel the plaintiff to accept their late answer is denied.

208 A.D.3d 644

In 2013, the plaintiff commenced an action (hereinafter the prior action) to foreclose a mortgage securing a consolidated note executed by the defendants Marc Pantel and Carol Pantel (hereinafter together the defendants). The defendants interposed an answer in which they asserted

173 N.Y.S.3d 610

as an affirmative defense that the plaintiff did not have standing. After a trial on the issue of standing, the Supreme Court determined that the plaintiff failed to establish that it had standing, and entered a judgment dismissing the complaint.

Thereafter, on June 15, 2017, the plaintiff commenced the instant action to foreclose the same mortgage. Prior to joining issue, the defendants moved pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them, arguing that the instant action was barred by res judicata and/or collateral estoppel. In an order dated February 26, 2018, the Supreme Court granted the defendants’ motion. The plaintiff appealed, and in a decision and order dated January 8, 2020, this Court reversed the order and denied the defendants’ motion (see HSBC Bank USA, N.A. v. Pantel, 179 A.D.3d 650, 116 N.Y.S.3d 336 ). The plaintiff served this Court's decision and order with notice of entry on January 22, 2020. As such, the defendants time to serve an answer to the complaint expired on Monday, February 3, 2020 (see CPLR 3211[f] ; General Construction...