Supreme Court, Kings County, May 3, 2021

Robert J. Tolchin, Brooklyn, for Joseph Chaim Society, Inc., defendant.

Sive, Paget & Riesel, P.C., New York City (Steven Barshov and Alexis Saba of counsel), for plaintiff.

Wingate, Kearney & Cullen, LLP, Brooklyn (Richard J. Cea of counsel), for Washington Cemetery, defendant.

As an initial matter, the court takes judicial notice that the New York State Attorney General has no interest and will not appear in this action.

Defendant Joseph Chaim Society, Inc. moves to reargue this court's decision and order dated January 12, 2021, and entered on January 13, 2021, denying its motion to compel plaintiff to accept its answer. The court assumes familiarity with the foregoing decision and order. Defendant claims the court misapprehended the applicable executive orders and the law regarding compelling plaintiff to accept a late answer under CPLR 2004 and 3012 (d).

"Executive Order 202.8 tolled 'any specific time limit for the . . . service of any . . . notice [or] motion . . . as prescribed by the procedural laws of the state.' That would appear to apply to the service of the notice of appearance, a CPLR 3211(a) pre-answer motion to dismiss, and a CPLR 3024 corrective motion." (See Siegel & Connors, NY Prac § 33 [6th ed Cum Supp 2021] [Statute of Limitations, Generally] [emphasis added].)

The court's language in its prior decision and order that Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8) did not apply to the "suspension of proceedings or motion practice" simply means that any statute of limitations was extended (or tolled) but did not preclude motion practice or filing of papers or filing an answer during the applicable period. Siegel also goes on to say, "Yet the language in Executive Order 202.8 does not expressly apply to toll the defendant's time to serve an answer!"^[FN*] (Siegel & Connors, NY Prac § 33 [6th ed Cum Supp 2021].) Siegel is persuasive but not mandatory authority; the author believes this executive order may have been intended to{**72 Misc 3d at 420} also toll the time to file an answer even though the language to accomplish this is missing. (Ibid.) The tolling under Executive Order 202.8 of statutes of limitations was in effect from March 20, 2020, to its eventual expiration on November 4, 2020, by Executive Order (A. Cuomo) No. 202.72 (9 NYCRR 8.202.72). Here, plaintiff was not prohibited from bringing a motion for default judgment and no proceedings were "suspended." The defendant was required to serve and file an answer. The misapprehension by the moving defendant of these executive orders and the short default period may constitute good cause for excusing the default, but the circumstances of this case make that relief unattainable.

The action was commenced on July 7, 2020, by filing the summons and complaint. The affidavit of service shows service on the New York State Secretary of State on July 27, 2020. The affidavit of service was filed on August 21, 2020. The movant's answer, which was verified by an attorney without personal knowledge, was filed on December 7, 2020, approximately 31/2 months late and after the motion for default judgment was served. The uncontested facts demonstrate that defendant's counsel intentionally failed to serve an answer even after being contacted by plaintiff's counsel before plaintiff filed its default judgment motion. Further, the motion to extend the time to answer under CPLR 2004 and 3012 (d) is not supported with an affidavit of merit or a client verified answer (CPLR 105 [u]).

Defendant contends that it need not submit an affidavit of merit or verified answer under CPLR 3012 (d) to prevail on its motion to compel a late answer citing several First Department cases and none from the Second Department. But the Second Department cases are binding on the court and the standard for compelling the acceptance of a late answer is good cause for the default and a potentially meritorious defense. See Yuxi Li v Caruso (161 AD3d 1132, 1133 [2018]):

" 'In order to avoid the entry of a default judgment, a defendant who has failed to appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action' (Jong Gwon Kim v Strippoli, 144 AD3d 982, 983 [2016]). A defendant who moves pursuant to CPLR 3012 (d) to compel the plaintiff to accept late service of an answer is required to make a similar showing (see id. at 983)."

See also Adames v Taveras (30 Misc 3d 143[A], 2011 NY Slip Op 50327[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]):{**72 Misc 3d at 421}

"Contrary to his contention that he was not required to submit an affidavit of merit, the Appellate Division, Second Department, has consistently held that a defendant who fails to answer the complaint and seeks to compel acceptance of a late answer must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action (see Juseinoski v Board of Educ. of City of NY, 15 AD3d 353, 356 [2005]; see also Ryan v Breezy Point Cooperative, Inc., 76 AD3d 523 [2010]; Roccanova v Aussino (USA) Inc., 76 AD3d 522 [2010]). Consequently, as no meritorious defense to the action was demonstrated, the motion, insofar as it was made by Barcacel, to compel plaintiff to accept his late answer should have been denied."

See also Vincent C. Alexander, Practice Commentaries (McKinney's Cons Laws of NY, CPLR 2004):

"Extensions of time are not free for the asking: The movant must show 'good cause.' In exercising its discretion, the court may consider such factors as length of the delay, reason or excuse for the delay, and prejudice to the opponent. Tewari v. Tsoutsouras, supra, 75 N.Y.2d at 12, 550 N.Y.S.2d at 577, 549 N.E.2d at 1148. See, e.g., Payne v. Buffalo General Hospital, 2012, 96 AD3d 1628, 947 N.Y.S.2d 282 (4th Dep't) (applying factors of validity of excuse, length of delay, and extent of prejudice on issue of untimely submission of motion paper). As previously mentioned, another factor is 'whether the moving party was in default before seeking the extension, and, if so, the presence or absence of an affidavit of merit.' Tewari v. Tsoutsouras, supra, 75 N.Y.2d at 12, 550 N.Y.S.2d at 577, 549 N.E.2d at 1147. An affidavit of merit does not appear to be an absolute requirement, however, except after a default in pleading." (Emphasis added.)

The court cannot grant defendant's motion to compel the plaintiff to accept its late answer because it intentionally defaulted and failed to provide the court with an affidavit of merit or verified answer by someone with personal knowledge showing a potentially meritorious defense. (See Yuxi Li v Caruso, 161 AD3d 1132, 1133 [2018]; Sargsyan v Kaieteur Constr., Inc., 171 AD3d 826 [2019]; Board of Mgrs. of Harborview Condominium v Goodman, 189 AD3d 1529 [2020]; Belches v City of New York, 191 AD3d 754 [2021].){**72 Misc 3d at 422}

Based on the foregoing, it is ordered that defendant Joseph Chaim Society, Inc.'s motion to reargue (mot seq No. 3) is granted and upon reargument to vacate the default the motion is denied; and it is further ordered that the court's order dated January 12, 2021, and entered on January 13, 2021, is modified solely by deleting the provision "that plaintiff's motion (#1) is granted to the extent that the court finds that defendant Joseph Chaim Society, Inc. defaulted in failing to answer" and substituting the following provision,

"that plaintiff's motion (#1) for default judgment against defendant Joseph Chaim Society, Inc. is GRANTED, the defendant's motion to [*3]compel the plaintiff to accept its answer is DENIED and the clerk shall enter a default judgment against defendant Joseph Chaim Society, Inc. with a final declaration of rights being made at trial or pursuant to other application; and this default judgment against defendant Joseph Chaim Society, Inc. shall not have preclusive effect on any other defendant."