Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on November 26, 2024, under motion sequence number one, by NSL Special Assets 3 LLC (hereinafter the plaintiff) seeking an order: (1) amending the caption by correcting the spelling of the second defendant to: "Scott Van Bergen"; (2) striking defendant Scott Van Bergen's pro se answer; (3) granting summary judgment in favor of plaintiff and against defendant, Scott Van Bergen; (4) providing for an order of ejectment evicting defendant, Scott Van Bergen, from possession of the subject premises: 1893 Albany Avenue, Brooklyn, NY11210; and (5) granting a judgment of ejectment and/or warrant of eviction, on default, as against defendant, Loretta Van Bergen. The motion is unopposed.

Exhibits 1-5

On August 12, 2024, plaintiff commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office (KCCO). The verified complaint includes two annexed exhibits and alleges fourteen allegations of fact in support of a single cause of action for an order of ejectment. The first annexed exhibit labeled 1 is a contract of sale. The second exhibit labeled exhibit 2 is a copy of a notice of termination that includes two affidavits of conspicuous service, one on defendant Loretta Van Bergen and one on Scott "Doe" a/k/a Scott E. Vanbergen.

The verified complaint alleges the following salient facts. Plaintiff owns in fee simple a two story one family house located at a certain address in Brooklyn, New York (hereinafter the subject property). In March of 2024, the plaintiff entered a contract of sale for the subject property with defendant Loretta Van Bergen for $775,000.00, with $75,000.00 as the down payment and the balance of $700,000 to be paid at the scheduled closing date set for April 5, 2024. Loretta Van Bergen, who was residing in the subject property, failed to pay the balance due pursuant to the contract and has remained in possession of the subject property. Defendant Scott "Doe" a/k/a Scott E. Vanbergen also resides at the subject property. Plaintiff served defendants with a notice of termination demanding that they vacate and surrender possession before July 31, 2024.

On September 9, 2024, Scott Van Bergen (hereinafter the answering defendant), proceeding pro se, interposed and filed an answer with a counterclaim with the KCCO. Defendant Loretta Van Bergen neither appeared in the action nor submitted opposition to the motion.

On March 4, 2025, plaintiff interposed and filed a reply to the answering defendant's counterclaim.

On February 20, 2025, the date scheduled for oral argument, the plaintiff appeared by counsel and the answering defendant appeared pro se. On that date, the Court gave the plaintiff until March 7, 2025, to file a proposed amended red lined complaint clearly delineating the changes plaintiff was making. The Court also gave the answering defendant until April 24, 2025, to file papers in response to plaintiff's motion and gave the plaintiff until May 7, 2025 to reply to any such responsive papers. The motion was adjourned to May 8, 2025. On May 8, 2025, with consent of the parties, the plaintiff's motion was adjourned to July 24, 2025. The answering defendant was given until July 10, 2025 to oppose the plaintiff's motion and the plaintiff was given until July 21, 2025 to reply to the opposition.

The answering defendant appeared but did not file opposition to the motion.

The plaintiff seeks, among other things, an order granting leave to amend the name of a defendant in the verified complaint.

CPLR 3025 (b) provides as follows:

"(b) Amendments and supplemental pleadings by leave. A party may amend his or her pleading or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be free given upon such terms as may be just including the granting of costs and continuances. Any motion to amend or supplement pleadings clearly showing the [*3]changes or additions to be made to the pleading."

A determination of whether to grant a motion for leave to amend a pleading rests within the sound discretion of the trial court (see 1934 Bedford, LLC v Gutman Weiss, P.C., 219 AD3d 1217, 1272). Such a motion to amend pursuant to CPLR 3025 (b) should be granted provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, or is not patently devoid of merit (Lucido v Mancuso, 49 AD3d 220, 222 [2d Dept 2008]).

The branch of the plaintiff's motion to amend the pleading by correcting the defendant's name in the caption from Scott Doe a/k/a Scott E. Vanbergen to Scott Van Bergen is granted. The answer filed by defendant Scott Van Bergen reflected that this was indeed the correct spelling of his name.

On September 9, 2024, the answering defendant interposed and filed an answer which contained a counterclaim. The counterclaim alleged, among other things, that the plaintiff will not return the $75,000.00 down payment to the defendants.

The plaintiff seeks an order striking the answering defendant's pro se answer, by claiming, in sum and substance, that it is baseless. The answering defendant's pro se answer consists of a general denial, several allegations of fact ^[FN1] , and one counterclaim. Further, motions to strike a pleading are generally associated with sanctions for disclosure violations pursuant to CPLR 3126.

Here, the plaintiff's motion papers are ambiguous as to whether the plaintiff seeks dismissal of the answering defendant's pro se answer pursuant to CPLR 3211 (a), CPLR 3211 (b), CPLR 3212, or some other basis. The difference is not without consequence.

A party seeking summary judgment pursuant to CPLR 3212 "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact" regarding the affirmative defenses (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985], citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

When moving to dismiss an affirmative defense pursuant to CPLR 3211 (b), the plaintiff bears the burden of demonstrating that the affirmative defense is "without merit as a matter of law" (Vita v New York Waste Servs., LLC, 34 AD3d 559, 559 [2d Dept 2006]). In reviewing such a motion, "the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference" (Fireman's Fund Ins. Co. v Farrell, 57 AD3d 721, 723 [2d Dept 2008]).

Although rule 103 of the old (pre-1963) Rules of Civil Practice authorized a motion to strike a denial if it was found to be a sham (Patrick M. Connors, Prac Commentaries, McKinney's Cons Laws of NY, CPLR C3013:14; see Fleischer v Terker, 259 NY 60 [1932]), a motion to strike a pleading as a sham no longer exists under the CPLR (see Whitmore v City of New York, 61 AD2d 795, 796 [2d Dept 1978], citing Chicago Dressed Beef Co. v Gold Medal Packing Corp., 22 AD2d 1010, 1010 [4th Dept 1964]). Pursuant to CPLR 3211 (b), "[a] party [*4]may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit" (CPLR 3211 [b]). However, "a CPLR 3211 (b) motion cannot be used to strike general denials as contrasted with specific defenses such as those contained in CPLR 3018 (b)" (City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]).

Therefore, the motion to strike that portion of the answer containing a general denial must be denied. Regarding the striking of the balance of the pleading, including the counterclaim, the plaintiff did not specify whether the motion was made pursuant to CPLR 3211 (a), CPLR 3211 (b), CPLR 3212, or through some other procedural vehicle. The ambiguity has prevented the Court from applying the correct standard of review against the balance of the answer and the counterclaim. Accordingly, this branch of the plaintiff's motion is denied on procedural grounds without prejudice (see Wells Fargo Bank, N.A. v Tessler, 50 Misc 3d 1224[A], 2016 NY Slip Op 50252[U] [Sup Ct, Kings County 2016]).

The plaintiff also seeks, among other things, an order of ejectment against defendant Loretta Van Bergen based on her default in appearing and answering the verified complaint pursuant to CPLR 3215.

The verified complaint has alleged the following salient facts, among others. In March of 2024, the plaintiff entered a contract of sale for the subject property with defendant Loretta Van Bergen for $775,000, with $75,000 as the down payment, and the balance of $700,000 to be paid at the scheduled closing date set for April 5, 2024. Loretta Van Bergen, who was residing at the subject property at the time the contract was executed, paid the $75,000 down payment, but failed to pay the balance due pursuant to the contract and continued to remain in possession of the subject property after April 5, 2024.

CPLR 3215 provides, in pertinent part, as follows:

"(a) Default and entry. When a defendant has failed to appear, plead, or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment against him"

"(f) Proof. On any application for judgment by default, the applicant shall file proof of service of the summons and the complaint . . . and proof of the facts constituting the claim, the default and the amount due . . . by affidavit made by the party . . . Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or the party's attorney."

On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to "submit proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the [defaulting party]'s default" in answering or appearing (Katz v Blau, 173 AD3d 987, 988 [2d Dept 2019], citing CPLR 3215 [f], and citing Atlantic Cas. Ins. Co. v RJNJ Services, Inc., 89 AD3d 649, 651 [2d Dept 2011]). CPLR 105 (u) permits a verified complaint to substitute an affidavit (see CPLR 105 [u]).

Here, the complaint was verified by Michael Weintraub, the managing member of the plaintiff, and, as such, the complaint can serve as an affidavit of the plaintiff's claim in accordance with CPLR 105 (u). On August 19, 2024, plaintiff filed an affidavit of service of the commencement papers with the KCCO. The filed affidavit of the plaintiff's process server [*5]demonstrated proper service of the commencement papers upon defendant Loretta Van Bergen pursuant to CPLR 308 (2) and that service was completed on August 29, 2024. The issue remaining was whether the motion papers set forth a viable claim for a default judgment granting an ejectment of the defendant. For the reasons set forth below it did not.

A default in answering the complaint is deemed to be an admission of all traversable factual allegations contained therein and all reasonable inferences that flow from them (Rosenzweig v Gubner 194 AD3d 1086, 1089 [2d Dept 2021], citing Woodson v Mendon Leasing Corp. 100 NY2d 62, 71 [2003]). Moreover, "[f]acts admitted in a party's pleadings constitute formal judicial admissions, and are conclusive of the facts admitted in the action in which they are made" (GMS Batching, Inc. v TADCO Constr. Corp., 120 AD3d 549, 552 [2d Dept 2014]).

Here, the plaintiff has alleged and thus admitted three salient facts. First, defendant Loretta Van Bergen resided at the subject property at the time the contract of sale was executed. Second, she, as the purchaser, paid the plaintiff $75,000.00 as a down payment of the $775,000.00 contract price. Third, she failed to pay the balance due pursuant to the contract and continued to remain in possession of the subject property.

In the matter of Heritage Art Galleries, Ltd. v Raia (173 AD2d 441, 441 [2d Dept 1991]), the vendor sued the purchasers alleging breach of contract for sale of real estate and sought as a remedy to eject the purchaser and to cancel contract, among other things. The trial court had denied vendor's motion to enter a default judgment after the purchasers failed to answer the complaint or to appear; the vendor appealed (id.). The Appellate Division affirmed, holding that the vendor was not entitled to enforce its rights by an action in ejectment, but rather, was required to either foreclose the purchaser's equitable title or to sue for the purchase price since part payment had been made under contract (id. at 441-442). "[T]he execution of a contract for the purchase of real estate and the making of a part payment gives a contract vendee equitable title to the property and an equitable lien in the amount of the payment" (id. at 441, quoting Pobich Natl. Alliance of Brooklyn v White Eagle Hall Co., 98 AD2d 400, 405 [2d Dept 1983]). "Further, 'a contract vendee who holds equitable title occupies the same position as the common-law mortgagor'" (Heritage Art Galleries, Ltd. v Raia, 173 AD2d 441, 441 [2d Dept 1991]). "Thus, the contract vendor may not enforce its rights by the simple expedient of an action in ejectment but must instead proceed to foreclose the vendee's equitable title" or "bring an action at law for the purchase price" (id. at 441-442, citing Bean v Walker, 95 AD2d 70 [4th Dept 1983]).

Here, the plaintiff's judicial admission in the verified complaint established that the defendant was the purchaser, that she made a partial payment in the contract of sale for the subject property, that she resided there before the contract was executed, continued to reside there after the alleged breach, and that the plaintiff seeks to eject her and keep the down payment. Applying the holding in Heritage Art Galleries v Raia (173 AD2d 441 [2d Dept 1991]), Loretta Van Bergen is a contract vendee and has equitable title to the property and an equitable lien in the $75,000 down payment. Therefore, under these circumstances, the plaintiff's motion for an order ejecting the defendant from the subject property based on the breach of the contract and the failure to answer the verified complaint is denied. Plaintiff may proceed to foreclose Loretta Van Bergen's equitable lien.

The branch of the motion by plaintiff NSL Special Assets 3 LLC for an order amending the caption by correcting the spelling of the second defendant to Scott Van Bergen is granted.

The branch of the motion by plaintiff NSL Special Assets 3 LLC for an order striking defendant Scott Van Bergen's pro se answer is denied without prejudice.

The branch of the motion by plaintiff NSL Special Assets 3 LLC for an order granting summary judgment in favor of plaintiff and against Scott Van Bergen is denied without prejudice.

The branch of the motion by plaintiff NSL Special Assets 3 LLC for an order of ejectment evicting Scott Van Bergen from possession of the subject premises is denied without prejudice.

The branch of the motion by plaintiff NSL Special Assets 3 LLC for an order granting a judgment of ejectment and/or warrant of eviction against defendant, Loretta Van Bergen on default is denied.

The foregoing constitutes the decision and order of this Court.