U.S. Bank Nat'l Ass'n v. Gilchrist

• Decision Date: 29 May 2019
• Docket Number: Index No. 2268/14,2016–09300
• Citation: 172 A.D.3d 1425,102 N.Y.S.3d 625
• Parties: U.S. BANK NATIONAL ASSOCIATION, etc., Appellant, v. Charles GILCHRIST, Respondent, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

172 A.D.3d 1425

102 N.Y.S.3d 625

U.S. BANK NATIONAL ASSOCIATION, etc., Appellant,

v.Charles GILCHRIST, Respondent, et al., Defendants.

2016–09300

Index No. 2268/14

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

Argued—February 11, 2019

May 29, 2019

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Noach Dear, J.), dated June 22, 2016. The order granted that branch of the cross motion of the defendant Charles Gilchrist which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as barred by the doctrine of res judicata.

ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for a hearing to determine whether the defendant Charles Gilchrist was properly served with process pursuant to CPLR 308(2), and thereafter, a determination of the plaintiff's motion and the cross motion of the defendant Charles Gilchrist.

The plaintiff commenced this action to foreclose a mortgage. The plaintiff subsequently moved, inter alia, for leave to enter a default judgment against the defendants and to appoint a referee to compute the sums due and owing to the plaintiff. The plaintiff argued that all of the defendants in this action had been served with the summons and complaint, and that they were all in default for failing to appear or answer within the time allowed. As relevant here, in support of its motion, the plaintiff submitted, among other things, an affidavit of a process server to show that the defendant Charles Gilchrist had been served with the summons and complaint pursuant to CPLR 308(2), and that he had failed to appear or answer the complaint within the time allowed. In addition, the plaintiff submitted evidence to establish that it was entitled to foreclose the subject mortgage due to Gilchrist's default in repaying his loan.

Gilchrist opposed the plaintiff's motion and cross-moved, by order to show cause, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him on a multitude of grounds. Gilchrist contended, among other things, that the plaintiff lacked standing to commence this action, that the action was barred by the doctrines of res judicata and collateral estoppel, and that the Supreme Court lacked personal jurisdiction over him. Gilchrist alternatively cross-moved pursuant to CPLR 3012(d) for leave to serve and file a late answer. In support of his position, Gilchrist submitted, inter alia, his own affidavit wherein he disputed some of the factual statements contained in the process server's affidavit that the plaintiff had submitted in support of its motion.

In the order appealed from, the Supreme Court granted that branch of Gilchrist's cross motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as barred by the doctrine of res judicata. Since the court's determination of that branch of the cross motion was dispositive of the entire action, the court did not determine the plaintiff's motion or any of the remaining branches of Gilchrist's cross motion. The plaintiff appeals. We reverse.

"An action is commenced by filing a summons and complaint" ( CPLR 304[a] ). With limited exceptions not applicable here, a defendant's appearance "shall be made within twenty days after service of the summons" ( CPLR 320[a] ). "The defendant appears by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer" ( CPLR 320[a] ).

Service of a notice of motion to dismiss a complaint pursuant to CPLR 3211(a) extends a defendant's time to answer the complaint (see CPLR 3211[f] ). A motion to dismiss a complaint pursuant to CPLR 3211(a) may be based on various grounds, including res judiciata, collateral estoppel, lack of standing, and lack of personal jurisdiction (see CPLR 3211[a][1]-[11] ).

Such a motion must be made "before service of the responsive pleading is required" ( CPLR 3211[e] ), or it is untimely (see Bennett v. Hucke, 64 A.D.3d 529, 530, 881 N.Y.S.2d 335 ). Without more, a defendant waives the defenses of res judiciata, collateral estoppel, and lack of standing if he or she fails to interpose an answer or file a timely pre-answer motion asserting those defenses (see CPLR 3211[e] ; Matter of Brown v. Stanford, 163 A.D.3d 1337, 1338, 82 N.Y.S.3d 622 ; American Home Mtge. Servicing, Inc. v. Arklis, 150 A.D.3d 1180, 1181–1182, 56 N.Y.S.3d 332 ).

Generally, a defendant who fails to timely answer the complaint or appear in the action is in default (see Holubar v. Holubar, 89 A.D.3d 802, 803, 934 N.Y.S.2d 710 ; see also CPLR 3215[a] ). "A defendant who has defaulted in answering admits all traversable allegations in the complaint, including the basic allegation of liability" ( Glenwood Mason Supply Co., Inc. v. Frantellizzi, 138 A.D.3d 925, 926, 31 N.Y.S.3d 107 ; see Rokina Opt. Co. v. Camera King, 63 N.Y.2d 728, 730, 480 N.Y.S.2d 197, 469 N.E.2d 518 ; Cole–Hatchard v. Eggers, 132 A.D.3d 718, 720, 18 N.Y.S.3d 100 ).

"On a motion for leave to enter a default judgment against a defendant based on the failure to answer or appear, a plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defendant's default" ( L & Z Masonry Corp. v. Mose, 167 A.D.3d 728, 729, 90 N.Y.S.3d 92 ; see CPLR 3215[f] ; Liberty County Mut. v. Avenue I Med., P.C., 129 A.D.3d 783, 784–785, 11 N.Y.S.3d 623 ). "To defeat a facially sufficient CPLR 3215 motion, a defendant must show either that there was no default, or that it had a reasonable excuse for its delay and a potentially meritorious defense" ( Liberty County Mut. v. Avenue I Med., P.C., 129 A.D.3d at 785, 11 N.Y.S.3d 623 ; see Clarke v. Liberty Mut. Fire Ins. Co., 150 A.D.3d 1192, 1195, 55 N.Y.S.3d 400 ). Similarly, to have a late answer deemed timely served nunc pro tunc, a defendant is required to provide a reasonable excuse for his or her delay in answering and demonstrate a potentially meritorious defense to the action (see CPLR 3012[d] ; L & Z Masonry Corp. v. Mose, 167 A.D.3d 728, 90 N.Y.S.3d 92 ; Clarke v. Liberty Mut. Fire Ins. Co., 150 A.D.3d at 1195, 55 N.Y.S.3d 400 ).

Here, we disagree with the Supreme Court's determination to grant that branch of Gilchrist's cross motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as barred by the doctrine of res judicata. The affidavit of the plaintiff's process server constituted prima facie evidence of proper service, and the plaintiff's submissions established Gilchrist's default in failing to appear or answer the complaint within the time allowed (see generally Yi Zhao v. Liu, 136 A.D.3d 1025, 1026, 25 N.Y.S.3d 606 ; Scarano v. Scarano, 63 A.D.3d 716, 716, 880 N.Y.S.2d 682 ). Accordingly, without more, that branch of Gilchrist's cross motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as barred by the doctrine of res judicata was untimely (see Deutsche Bank Natl. Trust Co. v. Ramharrack, 139 A.D.3d 787, 789, 31 N.Y.S.3d 568 ; Archer v. Motor Veh. Acc. Indem. Corp., 118 A.D.3d 5, 11, 985 N.Y.S.2d 96 ; Lema v. New York Cent. Mut. Fire Ins. Co., 112 A.D.3d 891, 892, 978 N.Y.S.2d 75 ; Holubar v. Holubar, 89 A.D.3d 802, 934 N.Y.S.2d 710 ). Having failed to interpose an answer or file a timely pre-answer motion asserting the defense of res judicata pursuant to CPLR 3211(a)(5), Gilchrist could not properly invoke that defense without first vacating his default and obtaining leave to serve a late answer that asserts res judicata as an affirmative defense (see CPLR 3211[e] ; Nationstar Mtge., LLC v. Kamil, 155 A.D.3d 968, 968–969, 63 N.Y.S.3d 890 ; see also Gerster's Triple E. Towing & Repair, Inc. v. Pishon Trucking, LLC, 167 A.D.3d 1353, 92 N.Y.S.3d 163 ; cf. Matter of Brown v. Stanford, 163 A.D.3d at 1338, 82 N.Y.S.3d 622 ; American Home Mtge. Servicing, Inc. v. Arklis, 150 A.D.3d at 1181–1182, 56 N.Y.S.3d 332 ).

However, as indicated, Gilchrist alternatively cross-moved pursuant to CPLR 3012(d) for leave to serve and file a late answer. In support of that branch of his cross motion, Gilchrist argued that he defaulted in this action because he had never been properly served. Since Gilchrist's sworn denial of receipt of process contained specific facts to rebut the statements in the process server's affidavit, the presumption of proper service was rebutted and an evidentiary hearing is required before the plaintiff's motion or Gilchrist's cross motion can be fully resolved (see generally FV–1, Inc. v. Reid, 138 A.D.3d 922, 924, 31 N.Y.S.3d 119 ; cf. L & Z Masonry Corp. v. Mose, 167 A.D.3d 728, 90 N.Y.S.3d 92 ). Accordingly, the matter must be remitted to the Supreme Court, Kings County, for a hearing to determine whether Gilchrist was properly served with process pursuant to CPLR 308(2), and thereafter, a determination of the plaintiff's motion and Gilchrist's cross motion.

SCHEINKMAN,...