This is an action brought against the defendants, seeking, inter alia, to set aside a certain deed, dated August 9, 1999, allegedly made by the plaintiff, 461 Bay Ridge Avenue Realty Corp.

to the defendant, Sycamore Realty Corp., and to restore the said plaintiff as fee simple owner of the property located at 459 Bay Ridge Avenue, Brooklyn, New York.

It is the individual plaintiffs' position that they acquired the premises known as 459 Bay Ridge Avenue, Brooklyn, NY by referee deed, dated September 29, 1995 which was filed with the Registry of Deeds on October 25, 1995, under Reel 3599 at Page 1685. The next day said property was transferred to 461 Bay Ridge Avenue Realty Corp. "without consideration as a mere change of identity with no change of beneficial interest[;]" i.e., they transferred the said property to a pre-existing corporation in which they were shareholders prior to the transfer, which deed was filed with the Registry of Deeds on April 3, 1996, under Reel 3686 at Page 83. 461 Bay Ridge Avenue Realty Corp. had been incorporated by co-plaintiff, Mr. Matone, on September 25, 1995, and the plaintiffs were at all times the sole shareholders and officers thereof. The plaintiffs thereafter uncovered that the defendant, James Noonan, had fraudulently transferred the subject premises on behalf of 461 Bay Ridge Avenue Realty Corp. to Sycamore Realty Corp., a corporation solely controlled and dominated by him, for no consideration, by deed dated August 9, 1999 and recorded on August 10, 1999 in Reel 4552 at Page 1083. The plaintiffs thereupon commenced the within proceeding to undo said fraudulent transfer. Their attorney filed a summons and complaint on June 10, 2003 and served the Secretary of State on behalf of Sycamore Realty Corp. on June 19, 2003. After the lapsing of its time to appear in the action (July 19, 2003), Sycamore Realty corp. attempted to serve an untimely Notice of appearance, dated August 25, 2003, which plaintiffs' attorney rejected. On December 24, 2003, this court granted a default judgment as to Sycamore Realty Corp., which the latter appealed. The Appellate Division, Second Department, set aside the default, with leave to renew upon proper papers, holding that the original motion for default failed to include an affidavit of the facts constituting the claims by a party with knowledge of the facts. Accordingly, this court has now been requested, on the combined affidavits of the individual plaintiffs, pursuant to CPLR §3215, to enter judgment against the defendant, Sycamore Realty Corp., for the relief demanded [*2]in the Summons with Notice upon the ground that said defendant failed to timely appear, answer, plead, or move with regards thereto, and is therefore in default. In addition, plaintiffs' counsel advances several arguments in support of their request. One, counsel notes the defendant's failure to have demonstrated a reasonable excuse for the default and a meritorious defense (citing, Platinum RX, LLC v. Pose, 818 NYS2d 283 {31 AD3d 522} [2d Dept., 2006]; Thompson v. Stueben Realty corp., 18 AD3d 864 [2d Dept., 2005]; Freulick-Woodruff v. B.A. Auto Repair, Inc., 14 AD3d 593 [2d Dept., 2005]).Two, counsel asserts that this court twice decided that the defendant has no excusable neglect; i.e., when the default motion was first made, and when the defendant's motion to vacate the same was heard. Consequently, counsel argues that those findings constitute the law of the case and cannot be re-litigated (citing, Brownrigg v. New York City Housing Authority, 29 AD3d 721 [2d Dept., 2006]; Marcus Dairy, Inc. v. Jacene Realty Corp., 27 AD3d 427 [2d Dept., 2006]; Stone v. Stone, 19 AD3d 404 [2d Dept., 2005]; Engel v. Eichler, 300 AD2d 622 [2d Dept., 2002]). Three, counsel argues that the defendants are barred by res judicata from asserting a meritorious defense of ownership to the subject property since complaints filed by them in 2004 and 2005 actions were dismissed based on documentary evidence submitted by the plaintiffs which proved that the latter were the sole owners of 461 Bay Ridge Avenue Realty Corporation which owned 459 Bay Ridge Avenue, Brooklyn, New York (citing, Aard-Vark Agency, Ltd. v. Prager, 8 AD3d 508, 779 NYS2d 213 [2d Dept., 2004]; Ciancimino v. Town of East Hampton, 266 AD2d 331 [2d Dept., 1999]; McKiney v. City of New York, 78 AD2d 884, 433 NYS2d 193 [2d Dept., 1980]).

Counsel for defendants, James K. Noonan and Sycamore Realty Corp., cross-moved for an order of dismissal for failure to state a cause of action as to the latter. Counsel acknowledges that service was made on the Secretary of State on June 19, 2003, to which a late notice of appearance was made on August 25, 2003 by Sycamore's then attorney which was rejected by plaintiffs' attorney on September 8, 2003. Counsel then asserts that "another" summons with notice was served on Sycamore on October 17, 2003 which was mailed to the wrong address and "did not contain notice to the corporation," but included a proviso that service was being made or had been made pursuant to Section 306 of the BCL (i.e., service upon the Secretary of State); that a complaint was thereafter served on July 10, 2003 to which Sycamore and Mr. Noonan submitted a never-rejected answer on November 11, 2003.

Defense counsel confirms that a default motion had been filed as to Sycamore on December 4, 2003 which failed to include an affidavit by someone with personal knowledge, that this court granted on May 7, 2004, signed on July 27, 2004, was duly entered on July 30, 2004, and ultimately reversed by the Appellate Division for the just stated omission. Counsel stresses that, contrary to the plaintiffs' attorney suggestion, said reversal contained no indication, much less directive that constrains this court to reinstate the default solely by the plaintiffs' curing the mentioned defect. He adds that it therefore follows that there is no law of the case analysis to which adherence is dictated. Finally, counsel argues that, assuming arguendo, that co-plaintiff Mr. Matone was the incorporator of 461 Bay Ridge Avenue Realty Corp., such a concession is not legal proof of ownership, shareholder, or officer status in the corporation, nor would a bank security agreement constitute verification thereof. In addition, counsel deems it strange that plaintiffs' attorney would have sent Mr. Matone an April 10, 2002 letter advising him that his clients had invested approximately $300,000.00 in the subject property if they had in fact become [*3]its full owners by virtue of referee deed, dated September 29, 1995.

In contradistinction, defendant's counsel notes that it was Mr. Noonan who filed for bankruptcy on behalf of said corporation, not the Matones. Counsel also argues that 1. where a corporation fails to receive actual notice, its default is excusable and permits the acceptance of an untimely answer even where the Secretary of State has been served (citing, Schmidt v. Dutch Builders, Inc., 111 AD2d 799, 491 NYS2d 6); 2. a default should be vacated where, as here, it has been demonstrated that the delay in responding was short, non-willful, and the plaintiff has suffered no prejudice (citing, Rodriguez v. L&S sons, 295 AD2d 492 [2d Dept., 2002]); and, 3. a fortiori, the plaintiffs' motion must fail due to their acceptance of the defendants' Noonan and Sycamore's November 11, 2003 answer, without objection (citing Ligotti v. Wilson, 287 AD2d 550; 731 NYS2d 473). In this latter regard, the defendant asserts that the plaintiffs' failure to have timely rejected its answer to their complaint served on July 10, 2003 (served on the defendant, Noonan in contrast to the summons with notice that had been served on the Secretary of State on June 19, 2003 for which the late notice of appearance, dated August 25, 2003, was rejected) cured any default, and that their acceptance of the same was clearly intended inasmuch as the plaintiffs subsequently served another summons with notice on October 17, 2003. In other words, counsel argues that ". . .even if Sycamore's August 25, 2003 notice of appearance may have been technically late, as to the first service of the summons with notice made on June 19, 2003, once plaintiffs made their second service, pursuant to §3215 on October 17, 2003, the Notice of Appearance became timely nunc pro tunc, by operation of law"(citing, Barillari v. 511 Main Street corp., 216 AD2d 859, 629 NYS2d 365).

Defense counsel further notes that David Perleman, Esq. represented 461 Bay Ridge Avenue Realty Corp. in an earlier foreclosure action (Index No.14821/96) wherein on April 29, 1977 defendant Noonan testified as president and sole shareholder of said corporation, a fact that was acknowledged by the judge, Joseph Dowd.

First, with regards to the defendant's request for dismissal for failure to state a cause of action, counsel for the plaintiffs cites the following deficiencies; to wit, the absence of any allegations in support thereof, and a three year prejudicial delay to assert this claim, which constitutes a waiver of the right to do so at this time. Second, in reply to the defendant's default opposition, counsel notes that defendant Noonan, in his answer to the plaintiffs' complaint, not only swore that he has never been a shareholder or officer of 461 Bay Ridge Avenue Realty Corp., but never denied the allegation that the Matones were the sole shareholders of said corporation.Counsel then repeats his arguments as to the prior 2004 (Index #

24354/04) and 2005 (Index #

15956/05) dismissed matters that were never appealed by Mr. Noonan. Three, counsel notes that Mr. Perlman was duly advised (by letter dated September 24, 2003) that the complaint was served on him solely as to Mr. Noonan since his notice of appearance had been rejected as untimely and a default judgement was being pursued against Sycamore. Counsel further notes that this fact was corroborated in Mr. Perleman's affirmation in opposition to the default wherein he asserted that Sycamore had never been served with a verified complaint. Plaintiffs' counsel therefore concludes that there was no answer accepted on behalf of Sycamore without objection to constitute a waiver of late service/default, noting that in the two cases, Ligotti v. Wilson, supra , and Minogue v. Monette, supra , cited by the defendant there was never an initial rejection of [*4]the answer. In fact, in the former, the plaintiff waited until five months later to file for default.

Four, counsel argues that Sycamore's assertion that it was never served with the summons and complaint should be disregarded in that it is being asserted for the first time three years after the fact, and "defendant's mere denial that he was served with a summons. . .[is] insufficient to rebut [the] presumption of proper service raised by [the] affidavit of service." (citing, Carrenard v. Mass, 11 AD3d 501[2d Dept., 2004]; Truscello v. Olympia Construction, Inc., 294 AD2d 350 [2d Dept., 2002]; De La Barrera v. Handler. 290 AD2d 476 [2d Dept., 2002]; Udell v. Alcamo Supply & Contracting Corp., 275 AD2d 453 [2d Dept., 2000]; Facey v. Heyward, 244 AD2d 452 [2d Dept., 1997]). Five, plaintiff's counsel asserts that the purpose of CPLR §3215(g) is not to afford the defaulting party a second chance to interpose an answer as contended by the defense, but merely an additional notice prior to entry of a default judgment. In other words, it is a last opportunity for a defaulting party to come forward with an excusable neglect and meritorious defense (citing, Rothschild v. Finklestein, 248 AD2d 701, 670 NYS2d 331 (2d Dept., 1998; FGB Realty Advisors, Inc. v. Norm-Rick Realty Corp., 227 AD2d 439, 642 NYS2d 696 (2d Dept., 1996); and, Orix Financial Services, Inc. v. Baker, 1 Misc 3d 288, 768 NYS2d 780). Six, counsel notes that the requirement of an additional service of summons was herein inapplicable since "[p]ursuant to the plain and unambiguous language of CPLR §3215(g), when a default based upon a non-appearance is sought against a domestic corporation which has been served pursuant to BCL §306(b) an affidavit shall be submitted that an additional service of the summons by first class mail has been made upon the defendant corporation at its last known address at least twenty days before the entry of judgment, however the statute further states that this requirement shall not apply. . .to actions affecting title to real property'"[as in this case]. (citing, CPLR 3215(g)(iii), NYCTL-1 Trust v. Liberty Bay Realty Corp., 21 AD3d 1013, 801 NYS2d 346 (2d Dept., 2005); and FGB Realty Advisors, Inc. v. Norm Rick Realty, Corp., supra ). Finally, counsel reiterated his arguments as to the absence of an excusable neglect and meritorious defense on behalf of Sycamore, stressing that Mr. Noonan's bankruptcy petition had been dismissed with no dispositive ruling by the court, and the absence of any plausible explanation as to why the Matones would have transferred their holding in the subject property to a corporation wholly owned by Mr. Noonan for no consideration.

In order to avoid the entry of a default judgment, a demonstration of reasonable excuse and meritorious defense is required (see CPLR 5015 (a )(1); Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 NY2d 138 (1986); Giovanelli, et al., v. Rivera, 23 AD3d 616, 804 NYS2d 817; Mjahdi v. Maguire, 21 AD3d 1067 (2005); Thompson v. Steuben Corp., et al., 18 AD3d 864 (2005); and Juseinoski v. Board of Educ. of city of NY, 15 AD3d 353 [2005]). The determination of what constitutes a reasonable excuse for a default lies in the sound discretion of the court, provided that discretion is providently exercised (see Thompson v. Steuben Realty Corp., et al., supra ; and Levy Williams Constr. Corp. v. United States Fire Ins. Co., 280 AD2d 650 [2001]). In considering an application for default, the court should consider relevant factors, such as the extent of the delay, prejudice or lack of prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits (see Thompson v. Steuben Realty Corp., et al., supra ; and Orwell Bldg., Corp. v. Bessaha, 5 AD3d 573 [2004]).

The case law also clearly states that "[t]he opponent of a motion for summary judgment [*5]must come forward with proof in evidentiary form, such as an affidavit by one with personal knowledge. An affirmation of an attorney, without personal knowledge will not suffice and should be entirely disregarded (see O'Hara v. O'Hara, 85 AD2d 669, 445 NYS2d 201, citing Marine Midland Bank v. Hall, 74 AD2d 729, 425 NYS2d 693). Allegations must be specific and detailed, substantiated by evidence in the record; mere conclusory assertions will not suffice. (O'Hara v. O'Hara, supra , citing Steingart Assoc., Inc. v. Sandler, 28 AD2d 801, 280 NYS2d 1012; Capelin Assoc. v. Globe, Mfg. Corp., 34 NY2d 338, 357 NYS2d 478; 313 NE2d 776)."

Although the defendant's (Mr. Noonan's) affidavit of merit provides support by one with personal knowledge of the facts herein concerned, and would ordinarily be enough to raise issues of fact to rebut the plaintiffs' position vis-a-vis Sycamore's lack of a meritorious defense, the problem here is that the defendant (Mr. Noonan) now contradicts his earlier sworn representations, as contained in his answer to the plaintiff's complaint; to wit, that he has never been a shareholder or officer of 461 Bay Ridge Avenue Realty Corporation, and wherein he never denied the allegation that the Matones were the sole shareholders of said corporation. This change in position is critical and appears to this court to be nothing short of a feigned attempt to create false issues of fact with regard to the matters of corporate ownership, shareholder and officer stati, and therefore fails to adequately give rise to the existence of any credible material questions of fact sufficient to rebut the plaintiffs' prima facie showing with regards thereto (compare Stancil v. Supermarkets General, supra , citing Marcelle v. NY City Transit Auth., 289 AD2d 459 [2001]). This court also finds that the defendant's other contentions of a second service and un-rejected acceptance of a purported answer thereto to be pure connivance designed to mislead and unnecessarily confuse the issues herein. The plain fact is that the defendant, in addition to not having convincingly demonstrated a valid excusable neglect, has offered no meritorious defense that would warrant the denial of default. In light of the just stated, there is simply no basis by which to construe any prejudice to the defendant Sycamore in the context of this application for default. Hence, on the basis of all of the foregoing, the plaintiffs' motion for default is granted. In addition, the defendant's cross-motion for dismissal for failure to state a cause of action is denied, as this court finds, as asserted by the plaintiffs' counsel, that there are no sufficient allegations in support thereof and that an inexplicable three year delay in asserting this claim does constitute a waiver of the right to do so at this time. More significantly, however, this court finds that the plaintiffs have asserted a credible and seemingly warranted cause of action. This constitutes the decision and Order of this Court.

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