Mannino Dev., Inc. v. Linares

• Decision Date: 28 May 2014
• Citation: 986 N.Y.S.2d 578,2014 N.Y. Slip Op. 03802,117 A.D.3d 995
• Parties: MANNINO DEVELOPMENT, INC., respondent, v. Francisco LINARES, et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

117 A.D.3d 995

986 N.Y.S.2d 578

2014 N.Y. Slip Op. 03802

MANNINO DEVELOPMENT, INC., respondent,

v.Francisco LINARES, et al., appellants, et al., defendants.

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

May 28, 2014.

Edward M. Gould, Islip, N.Y., for appellants.

Stagg, Terenzi, Confusione & Wabnik, LLP, Garden City, N.Y. (Ronald P. Labeck of counsel), for respondent.

MARK C. DILLON, J.P., RUTH C. BALKIN, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.

In an action to foreclose a mortgage, the defendants Francisco Linares and Flora D. Linares appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (LaSalle, J.), dated January 11, 2012, as denied their motion pursuant to CPLR 3012(d) to extend their time to answer the complaint and to compel the plaintiff to accept service of that answer.

ORDERED that the order is affirmed insofar as appealed from, with costs.

To extend the time to answer the complaint and to compel the plaintiff to accept an untimely answer as timely, a defendant must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action ( seeCPLR 3012[d]; HSBC Bank USA, N.A. v. Lafazan, 115 A.D.3d 647, 983 N.Y.S.2d 32;Community Preserv. Corp. v. Bridgewater Condominiums, LLC, 89 A.D.3d 784, 785, 932 N.Y.S.2d 378;Ryan v. Breezy Point Coop., Inc., 76 A.D.3d 523, 524, 904 N.Y.S.2d 910). “The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court” ( Maspeth Fed. Sav. & Loan Assn. v. McGown, 77 A.D.3d 889, 890, 909 N.Y.S.2d 403;see HSBC Bank USA, N.A. v. Lafazan, 115 A.D.3d at 647, 983 N.Y.S.2d 32;Star Indus., Inc. v. Innovative Beverages, Inc., 55 A.D.3d 903, 904, 866 N.Y.S.2d 357;Antoine v. Bee, 26 A.D.3d 306, 306, 812 N.Y.S.2d 557).

Here, the Supreme Court providently exercised its discretion in determining that the appellants did not have a reasonable excuse for their lengthy delay in seeking to answer the complaint ( see Bank of N.Y. Mellon v. Izmirligil, 88 A.D.3d 930, 931, 931 N.Y.S.2d 667;Kouzios v. Dery, 57 A.D.3d 949, 950, 871 N.Y.S.2d 303). The appellants' appearance and participation, along with their counsel, at settlement conferences required for certain residential mortgage foreclosure actions ( see22 NYCRR 202.12–a) do not provide a reasonable excuse for their delay in answering ( see HSBC Bank USA, N.A. v. Lafazan, 115 A.D.3d at 648, 983 N.Y.S.2d 32.) As such, it...