Papers Submitted:

The instant action was commenced via the filing of a Summons and Verified Complaint on [*2]February 9, 2023. Plaintiff submits an affidavit of service dated February 28, 2023, from an individual identified as Thomas M. Arleo wherein it is attested that service of the subject pleadings and notices was effectuated upon Defendant Arlene Musnik ("Ms. Musnik") on February 27, 2023, at her residence located at 854 E. Broadway, 6E, Long Beach, New York 11566. The Plaintiff submits a second affidavit of service dated March 4, 2023, from an individual identified as Paul Martinez in which service on Ms. Musnik was effectuated pursuant to CPLR 308(4) ("nail and mail service"), at 2118 Illona Lane, Merrick, New York 11566 (the "Subject Premises").

Ms. Musnik states that on July 17, 2023, she attended a CPLR 3408 settlement conference, which extended her "statutory right to answer the Complaint [to] on or before August 16, 2023." On July 16, 2023, Ms. Musnik filed her purported answer (the "Purported Answer"). On July 17, 2023, Plaintiff filed a Notice of Return and Rejection of the Purported Answer.

Ms. Musnik now moves by Notice of Motion dated November 6, 2023, for an order "declaring the moving defendant Arlene Musnik's [Purported] Answer to be timely interposed." She asserts that, as guided by CPLR § 3012(d), Plaintiff must be compelled to accept the Purported Answer since Ms. Musnik's delay was reasonable as she was afforded an extension of her time to serve an answer after she participated in a settlement conference on July 17, 2023 pursuant to CPLR 3408(m). As to a meritorious defense, Ms. Musnik asserts that "this action is time-barred as a matter of law" having been discontinued by stipulation in 2019.

Plaintiff opposes the application and states that Ms. Musnik has failed to provide a reasonable excuse for her failure to timely interpose an answer timely as well as a meritorious defense to the instant foreclosure action. Plaintiff asserts that Ms. Musnik admits to service of the Complaint and that the "sole excuse offered by [Ms. Musnik] that she is entitled to interpose a late answer pursuant to CPLR 3408(m)" is unavailable since Ms. Musnik "admittedly does not reside at the [Subject] Premises and therefore, is not entitled to the protections of CPLR 3408." Furthermore, Ms. Musnik has failed to establish a meritorious defense in that she claims, "this action is time-barred based on the commencement of a prior 2009 action," which, based upon multiple bankruptcy filings and the "stays imposed by COVID in 2020" tolled the applicable statute of limitations.

Ms. Musnik has not submitted reply papers in response to Plaintiff's opposition.

As attested to in the February 27, 2023 affidavit of service, which has not been contradicted by Ms. Musnik, her residence is 854 E. Broadway, Long Beach, New York 11566, and not the Subject Premises.

CPLR § 3012(d) provides:

Extension of time to appear or plead. Upon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default.

CPLR §3408(m) provides:

A defendant who appears at the settlement conference but who failed to file a timely answer, pursuant to rule 320 of the civil practice law and rules, shall be presumed to have a reasonable excuse for the default and shall be permitted to serve and file an answer, without any substantive defenses deemed to have been waived within thirty days of initial appearance at the settlement conference. The default shall be deemed vacated upon service and filing of an answer.

However, as guided by the Appellate Division, Second Department, the CPLR 3408 [*3]mandatory settlement conference is only available to "resident[s] of the property subject to foreclosure," and cannot serve as a reasonable excuse for default in answering a pleading (Bank of New York Mellon v Lee, 201 AD3d 852 [2d Dept 2022]). Where a party has failed to demonstrate a reasonable excuse for their failure to timely answer the complaint, it is unnecessary to consider a potentially meritorious defense to the action. (Aurora Loan Services, LLC v Movtady, 165 AD3d 1025 [2d Dept 2018]).

In the instant matter, Ms. Musnik has failed to establish a reasonable excuse for her default. Based upon the foregoing, it is hereby

ORDERED, that the motion by the Defendant, ARLENE MUSNIK, seeking an Order declaring that her answer was timely interposed, is DENIED, in its entirety.

All applications not specifically addressed herein are DENIED.

This constitutes the decision and order of this Court.