Supreme Court, Bronx County

Decided on December 5, 2025

Index No. 812027/2021E

Kim Adair Wilson, J.

[*1]

"NOTICE OF MOTION" (NYSCEF Doc 117), dated and filed August 21 and 22, 2025, respectively, by Jamie R. Begley, Esq. (Kennedys CMK LLP), counsel for defendants, RD America, LLC i/s/h/a JMDH Real Estate Of Newburgh, LLC ("JMDH"), RD America, LLC i/s/h/a Restaurant Depot LLC ("Restaurant Depot"), RD America, LLC i/s/h/a Jetro Holdings, LLC ("Jetro Holdings"), RD America, LLC i/s/h/a JRD Unico, Inc. ("JRD Unico"), RD America, LLC, RD America, LLC i/s/h/a Jetro Cash & Carry Enterprises, LLC ("Jetro CCE") (hereafter, collectively, "RD America"), seeking an Order "pursuant to CPLR § 2201, 2221(a) and 5019(a): (1) granting Defendants leave to reargue their motion to amend its Answer to appear for JDMH REAL ESTATE OF NEWBURGH LLC, RESTAURANT DEPOT LLC, JETRO HOLDINGS, LLC, JRD UNICO, INC., and JETRO CASH & CARRY ENTERPRISES, LLC and represent them as RD AMERICA, LLC i/s/h/a JMDH REAL ESTATE OF NEWBURGH, LLC, RD AMERICA, LLC i/s/h/a RESTAURANT DEPOT LLC, RD AMERICA, LLC i/s/h/a JETRO HOLDINGS, LLC, RD AMERICA, LLC i/s/h/a JRD UNICO, INC, and RD AMERICA, LLC i/s/h/a JETRO CASH & CARRY ENTERPRISES, LLC as the proper and appropriate entity is RD AMERICA, LLC as there is no prejudice to Plaintiff [and] (2) granting Defendants leave to renew their motion to amend its Answer to appear for JDMH REAL ESTATE OF NEWBURGH LLC, RESTAURANT DEPOT LLC, JETRO HOLDINGS, LLC, JRD UNICO, INC., and JETRO CASH & CARRY ENTERPRISES, LLC and represent them as RD AMERICA, LLC i/s/h/a JMDH REAL ESTATE OF NEWBURGH, LLC, RD AMERICA, LLC i/s/h/a RESTAURANT DEPOT LLC, RD AMERICA, LLC i/s/h/a JETRO HOLDINGS, LLC, RD AMERICA, LLC i/s/h/a JRD UNICO, INC, and RD AMERICA, LLC i/s/h/a JETRO CASH & CARRY ENTERPRISES, LLC as the proper and appropriate entity is RD AMERICA, LLC as there is no prejudice to Plaintiff[,]" is GRANTED, as set forth below.

On September 3, 2021, plaintiffs Rosalie and Antonio DelliCarpini commenced the underlying action against defendants JMDH, Restaurant Depot, Jetro Holdings, JRD Unico, RD America, LLC, and Jetro CCE, for personal injuries allegedly sustained on or about February 23, 2021, when plaintiff Rosalie DelliCarpini was caused to slip and fall in a parking lot located at 1281 Route 300, Newburgh, New York. The complaint alleges a cause of action by Rosalia Carpini for negligence jointly against all defendants, and also a derivative cause of action for medical expenses and loss of services by husband Antonio DelliCarpini. Defendant RD America joined issue with the filing of its verified answer on December 3, 2021, (NYSCEF Doc 8) denying all allegations, and pleading thirteen affirmative defenses. On March 16, 2022, defendant/third-party plaintiff RD America impleaded Foley Landscaping Contractors ("Foley") as third-party defendants (NYSCEF Doc 12), asserting five claims, namely, for contractual indemnification, common law indemnification, contribution, breach of contract, and attorney's fees. On April 13, 2022, Foley answered (NYSCEF Doc 15) RD America's third-party complaint, pleading six affirmative defenses and a counterclaim for indemnification/contribution. Defendants JMDH, Restaurant Depot, Jetro Holdings, JRD Unico, and Jetro CCE have not interposed answers in this action.

On December 20, 2024, RD filed an amended answer (NYSCEF Doc 53) substituting RD America as the sole defendant, incorrectly sued as JMDH, Restaurant Depot, Jetro Holdings, JRD Unico, and Jetro CCE. Such answer was rejected by plaintiffs as untimely on December 23, 2024 (NYSCEF Doc 54). Plaintiffs thereafter filed their Note of Issue on May 1, 2025 (NYSCEF Doc 92).

The prior decision and order of this Court (NYSCEF Doc 107), dated July 3, 2025 (Kim Adair Wilson, J.), denied RD America's prior motion to amend its answer to appear on behalf of the non-answering defendants JMDH, Restaurant Depot, Jetro Holdings, JRD Unico, and Jetro CCE, for failure to submit affidavits [*2]of merit for those defendants, where those defendants had failed to submit responsive pleadings for over three years following the commencement of this action. Movants have since filed a notice of appeal of that decision (NYSCEF Doc 109).

Contentions of the Parties

RD America now moves to renew and reargue its prior motion, asserting that this Court previously misapplied CPLR 3012(d) to require that the movants provide an affidavit of merit. In support of its motion, movant supplies additional authority in Nason v. Fisher, 309 AD2d 526 (1st Dept. 2003), as purportedly establishing that a movant need not submit an affidavit of merit on a motion for an extension of time to serve a pleading where the opposing party has not moved for a default. RD America additionally proffers an "Affidavit of Merit" by one Sean Burns (NYSCEF Doc 128), counsel for the moving defendant, who represents that the legal representative of the non-answering parties was previously engaged negotiations with plaintiffs' counsel to obtain a voluntary stipulation of discontinuance as to those parties, and that those negotiations were unsuccessful, and insisting that "only through an oversight was the answer not amended to include appearances by other parties" (id. at ¶8). The affirmation points to email communications dated December 29, 2021, and February 14, 2022 (NYSCEF Docs 59 and 61), in support of the affiant's assertions of fact. Finally, RD America maintains that plaintiffs will sustain neither prejudice nor surprise, since the amended answer was filed in direct response to plaintiffs' previous requests that movant file answers on behalf of the non-answering parties.

In opposition plaintiffs assert that defendant fails to identify any misapprehension of law by the Court, nor has it established (i) that the non-answering defendants were not in default, nor provided a reasonable excuse for its default. Plaintiffs contend that the non-answering parties cannot show that only a short delay ensued following the expiration of their time to answer, having waited three years to file their answer. Plaintiffs also deny having sought that the movant file answers on behalf of the defaulting defendants and submit that they will be prejudiced by the inclusion of the defaulting defendants in the discovery process, which is substantially complete at this stage of the litigation. They further remark that the proposed amended answer (NYSCEF Doc 58) raises thirteen affirmative defenses as to each of the newly-answering defendants, requiring bills of particulars for all of those parties. Finally, in rebuttal of movant's citations of authority, plaintiffs argue that a party seeking an extension to file a late pleading under CPLR 3012(d) may only eschew an affidavit of merit when the time to serve a responsive pleading has not yet expired, citing, inter alia, the New York Court of Appeals decision in Tewari v. Tsoutsouras, 75 N.Y.2d1, 11-12 (1989). They highlight that both the proposed amended complaint and movant's affidavit of merit are insufficient to verify the merits of the non-answering parties' defenses, in that both are verified by attorneys without personal knowledge of the underlying facts, and that the underlying motion must thusly be denied.

In its reply papers, movant (erroneously) asserts that this Court relied primarily on persuasive Second Department authority incongruent with controlling First Department precedent. It also refutes plaintiffs' proffers of caselaw as non-controlling or outdated, maintaining that submission of an affidavit of merit in support of a motion to extend time to plead is only required where a prior motion to dismiss or for default judgment has already been filed. Separately, RD America insists that there is no prejudice to the plaintiffs, positing that the amended answer raises identical affirmative defenses to the original answer and that all defendants maintain coverage under the same insurance policy.

Applicable Law

A. Motion to Renew/Reargue

It is well established that the Court has discretion to grant a motion to reargue upon a showing that the Court overlooked or misapprehended the facts or law, or for some other reason mistakenly arrived at its earlier decision. CPLR 2221(d)(2); also see SantaMaria v. Schwartz 238 AD2d 569 (2d Dept. 1997); Loland v. City of New York, 212 AD2d 674 (2d Dept. 1995). The motion shall not include any factual matter not offered [*3]on the prior motion since it is not intended to afford an unsuccessful party successive opportunities to reargue issues previously decided, or to present arguments not originally asserted. Rubinstein v. Goldman, 225 AD2d 328 (1st Dept. 1996). If such a showing is made, the motion must be granted. Loland v. City of New York, supra. Conversely, the granting of leave for renewal simply requires a showing of new facts not offered on the prior motion that would change the prior determination or a change in the law that would change the prior determination, and a reasonable justification for the failure to present such facts on the prior motion. Ramos v. City of New York, 61 AD3d 51, 54 (1st Dept. 2009) (internal quotation marks omitted); CPLR 2221. While the plain language of the statute requires that the movant offer some reasonable justification for its omission of the newly proffered evidence upon renewal, the Appellate Division, First Department, maintains a lenient perspective on this requirement, permitting minor and procedural defects to be cured on renewal in the interest of justice, absent any showing of prejudice to the non-movant, even where no explanation is offered. See Mejia v. Nanni, 307 AD2d 870, 871 (1st Dept. 2003); B.B.Y. Diamonds Corp. v. Five Star Designs, Inc., 6 AD3d 263, 264 (1st Dept. 2004). Here, in view of the movant's additional evidentiary submissions, RD America's motion for leave to renew its prior motion is GRANTED.

B. The Underlying Motion to Extend Time to Plead/Amend Pleading

New York State courts have long adopted a policy preferring the resolution of disputes on meritorious, rather than procedural, grounds. Silverio v. City of New York, 266 AD2d 129 (1st Dept. 1999); Richardson v. City of New York, 295 AD2d 115 (1st Dept 2002). Notwithstanding, the First Department has established the following five-factor test for determining whether to grant an extension of time to file pleadings: (i) the length of the delay, (ii) the excuse offered, (iii) the extent to which the delay was willful, (iv) the possibility of prejudice to adverse parties, and the (v) potential merits of any defense. See Emigrant Bank v. Rosabianca, 156 AD3d 468, 472—73 (1st Dept. 2017) (citing Artcorp Inc. v. Citirich Realty Corp., 140 AD3d 417, 417 (1st Dept. 2016); also see CPLR 2004.

However, in Tewari v. Tsoutsouras (75 NY2d 1, 12 [1989]), the Court of Appeals expressly held that a party who defaults in timely filing its pleading must submit an affidavit of merit in support of any motion to extend its time to file, irrespective of the discretionary considerations provided under CPLR 2004. The Tewari court stated thusly:

CPLR 2004 vests the trial court with discretion to extend the time to perform any act, including the filing of the 3406(a) notice, "upon such terms as may be just and upon good cause shown". In considering the motion, the court may properly consider factors such as the length of the delay, whether the opposing party has been prejudiced by the delay, the reason given for the delay, whether the moving party was in default before seeking the extension, and, if so, the presence or absence of an affidavit of merit. (See generally, 2A Weinstein-Korn-Miller, NY Civ Prac ¶ 2004.03.) In the case of pleading defaults, however, we have held that the absence of an affidavit of merit defeats the motion regardless of the weight of the other factors considered under CPLR 2004 (La Buda v Brookhaven Mem. Hosp. Med. Center, 62 NY2d 1014; A & J Concrete Corp. v Arker, 54 NY2d, at 872, supra; Sammons v Freer, 99 AD2d 896, affd for reasons stated below 62 NY2d 1018, supra; Smith v Lefrak Org., 96 AD2d 859, affd for reasons stated below 60 NY2d 828).

Tewari v. Tsoutsouras, supra at 11—12.

As stated above, the Court of Appeals has specifically imposed that an affidavit of merit be submitted by a party in a state of "pleading default" who is seeking an extension of time. The statutory language of CPLR 3215 also explicitly acknowledges the distinction between the state of default and the entry of judgment. CPLR 3215(c) states that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." CPLR 3215 (italics added). Here the legislature demarcated a distinction between the state of default and the entry of a default judgment, clearly identifying that the former occurs independently of the latter. The First Department also very recently observed this distinction in Tadco Constr. Corp. v. Gen. Contractors Ass'n of New York, Inc. (223 AD3d 445, 445 [1st Dept. 2024]), wherein the appellate court [*4]determined that a non-answering defendant "was technically in default when it failed to timely answer or move to dismiss after it filed its notice of appearance."

Nonetheless, in 1983, shortly after the enactment of CPLR 3012(d), the First Department held, in Mufalli v. Ford Motor Co., 105 AD2d 642, 643 (1st Dept. 1984), that the absence of an affidavit of merit is not a dispositive factor under that statute where, in that case, plaintiff's delay in serving the complaint of only 3½ months effected no prejudice upon the plaintiff, and where plaintiff provided a reasonable excuse for the delay. Indeed, the Mufalli court's reasoning rested largely on CPLR 3012(d)'s implied intent of permitting liberality in the excusing of brief and nonprejudicial defaults. Mufalli, supra at 644; also see Shure v. Vill. of Westhampton Beach, Inc., 121 AD2d 887, 888 (1st Dept. 1986). Years later, in Nason v. Fisher (309 AD2d 526 [1st Dept. 2003]), upon which the movant heavily relies, the First Department observed that the defendant attempted to serve its verified answer only three months after the filing of the complaint, and cited law office failure as causing the delay, as permitted under CPLR 2005. The Nason court also noted in its decision that no default order or judgment had been obtained by that plaintiff, further warranting the granting of an extension of time to file. Id. Additional cases in this line of jurisprudence also primarily identify the relative brevity of the delay in pleading and the lack of willfulness or prejudice by the defaulting party, as well as the absence of a previously granted default judgment, in deeming an affidavit of merit to be unnecessary for an extension of time under CPLR 3012(d). See Sukhu v. R.A.I.N. Home Attendant Servs., Inc., 190 AD3d 468, 468 (1st Dept. 2021); Pichardo v. 969 Amsterdam Holdings, LLC, 176 AD3d 571, 572 (1st Dept. 2019); Newyear v. Beth Abraham Nursing Home, 157 AD3d 651, 652 (1st Dept. 2018); Marine v. Montefiore Health Sys., Inc., 129 AD3d 428, 429 (1st Dept. 2015); Hirsch v. New York City Dep't of Educ., 105 AD3d 522 (1st Dept. 2013); Guzetti v. City of New York, 32 AD3d 234, 234 (1st Dept. 2006); and Terrones v. Morera, 295 AD2d 254, 255 (1st Dept. 2002).

Analysis

Upon review and the analysis of statutory authority, relevant case law, the papers submitted and the record, it is determined that although this Court did not err in its prior decision and order dated July 3, 2025 (NYSCEF Doc 107), upon movant's renewal of the underlying motion and a reconsideration of the CPLR 3012(d) jurisprudence within the First Department, and in view of the factors delineated under Emigrant Bank v. Rosabianca (supra at 472-73), particularly the absence of prejudice to the plaintiff, the Court now determines that it is warranted that the non-answering defendants be permitted to interpose answers in this action.

At the outset, this Court struggles to fully reconcile the seeming disparity between Court of Appeals and First Department jurisprudence on this issue. This apparent incongruity was meticulously described by the Second Department in Juseinoski v. Bd. of Educ. of City of New York (15 AD3d 353 [2d Dept. 2005]), who observed that the Court of Appeals has afforded greater discretion to motion courts to grant extensions of time to plead where no motion for dismissal or default has been filed. See id. at 357 (citing A & J Concrete Corp. v. Arker, 54 NY2d 870, 872 [1981]). However, in Juseinoski the Second Department also noted that the Arker court explicitly specified that an application for an extension of time to file a pleading requires some verification of the merits of that pleading, whether by affidavit or verified complaint (although Justice Fuchsberg, in his concurrence, dissented from the Arker majority's holding that an affidavit of merit should be required). See Juseinoski, supra at 353 (citing Arker, supra at 872). Although not controlling here, the Second Department opined that the line of First Department cases alleviating the requirement of an affidavit of merit in the absence of a default judgment was irreconcilable with Court of Appeals precedent, which has clearly held that "once the time to serve the pleading has expired, the absence of an affidavit of merit defeats a motion to extend the time to serve the pleading." Juseinoski, supra at 357 (citing Tewari v. Tsoutsouras, supra at 11—12 [1989]; A & J Concrete Corp. v. Arker, supra at 872; La Buda v. Brookhaven Mem. Hosp. Med. Ctr., 62 NY2d 1014, 1016 (1984); Sammons v. Freer, 99 AD2d 896 [3d Dept. 1984], affd. 62 NY2d 1018 (1984). While this Court finds that reasoning to be highly persuasive (as does the Court of Appeals, based on its affirmance of the rationale as stated in Sammons, supra), such directly countermands the mandatory authority established under the First Department. Thus, this Court must now shoulder the unenviable burden of navigating the apparent divergence of controlling precedent on this issue of law under the circumstances of the underlying [*5]motion.

Adherence to the Court of Appeals' reasoning would necessarily find that the non-answering defendants are already in default and must therefore provide an affidavit of merit in support of their motion to extend time to file a pleading. Plaintiff's affidavits of service attest to the September 16, 2021, service upon those defendants pursuant to CPLR 311 (see NYSCEF Docs 2 — 7), which required the filing of responsive pleadings by October 16, 2021. The non-answering defendants are therefore in a state of default. As to RD America's proffer of the required affidavit, its purported "Affidavit of Merit" (NYSCEF Doc 128) is signed by Sean Burns, who is identified as movant's legal counsel, and who has obtained familiarity with this matter based on the records and files maintained by his office. However, an affidavit by an attorney without personal knowledge lacks any evidentiary value, particularly where such affidavit does not function as the vehicle for the submission of attachments that provide proof in evidentiary form. See Zuckerman v. City of New York, 49 NY2d 557, 563 (1980); also see Fawn Second Ave. LLC v. First Am. Title Ins. Co., 192 AD3d 478 (1st Dept. 2021). Therefore, movant's motion is fatally deficient under the stringent standard set forth by the Court of Appeals in Tewari and Arker.

On the other hand, defendant's underlying motion prevails under the more liberal multi-factor standard enunciated by the First Department in Emigrant Bank (supra at 472-73), requiring the court to assess (i) the length of the delay, (ii) the excuse offered, (iii) the extent to which the delay was willful, (iv) the possibility of prejudice to adverse parties, and the (v) potential merits of any defense. Firstly, the movant's delay was particularly egregious — in excess of three years following the commencement of the action. Secondly, as to defendant's excuse for delay, controlling caselaw states that any excuse for default must be shown to have occurred prior to the date of default, October 16, 2021. See Nouveau Elevator Indus., Inc. v. Tracey Towers Hous. Co., 95 AD3d 616, 618 (1st Dept. 2012). The emails submitted by defendant as proof of their attempts to obtain plaintiffs' voluntary discontinuance as to the non-answering defendants indicate that the defense counsel made contact with plaintiffs' counsel for that purpose on December 29, 2021 (see NYSCEF Docs 59 and 61), over two months after the default date. However, to the extent that such neglect is tantamount to law office error, CPLR 2005 requires that the "extent of counsel's negligence must instead be weighed against the merits of the claim and the lack of prejudice to the other side." LaValle v. Astoria Const. & Paving Corp., 266 AD2d 28, 28 (1999). Here, as stated above, defendant has failed to establish the merits of any prospective defense by the defaulting defendants, but plaintiffs also fail to show any prejudice caused by the defendant's delay. In the prior decision and order that movant seeks to vacate (NYSCEF Doc 107), the Court noted that RD America failed to submit any reply papers on its previous motion to dispute plaintiff's assertions of prejudice caused by defendant's delay. Now, on renewal and reargument, movant asserts that the proposed amended answer asserts the same affirmative defenses as the answering defendant, RD America, and that the defendants are all insured under the same policy. These revelations would appear to obviate the need for extensive additional discovery, since all of these defendants are maintaining the same defenses, will pay any potential damages to plaintiffs from the same source of funds, and thus appear to be largely united in interest. It is therefore evident that the plaintiffs are not significantly prejudiced by the delayed answer. Hence, the second factor remains neutral in this analysis, since neither of the countervailing elements of merit and prejudice outweighs the other. As to the third factor, there is no indication that the defendants' delay was willful, merely careless. The fourth and fifth factors have already been addressed above, and each weighs alternately in support and against granting an extension of time, respectively.

Despite having arrived at an impasse where the considerations weigh equally in favor and against, in view of the consistent reasoning of the First Department in similar matters, and of New York's strong policy of resolving cases on their merits, given the absence of a prior default judgment and the nonprejudicial effect of the delay upon the adverse parties, this motion should be granted under the established First Department jurisprudence. Consequently, this Court will adhere to the First Department's copious body of controlling precedent, notwithstanding the enduring legal ambiguities outlined above.

Parenthetically, the Court also observes that, were the movant's motion to be denied here, the plaintiffs would nonetheless be precluded from subsequently obtaining a default judgment against the non-answering defendants at this late date under CPLR 3215(c). In fact, that statute would require that plaintiffs' [*6]complaint be dismissed as against the non-answering defendants for plaintiffs' failure to take up proceedings to obtain a judgment within a year of default. See CPLR 3215(c). As a fittingly paradoxical capstone to the immediate proceedings, both parties may ultimately come to find the outcome to be somewhat ironic.

In light of the above, RD America's motion to renew and reargue its prior motion to amend its pleading, and for an extension of time to file a late answer, is GRANTED. Further, defendant's proposed amended answer (NYSCEF Doc 58) will be deemed timely served upon all parties, nunc pro tunc, upon service of notice of entry of this decision and order.

The Court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any relief requested by the parties was not addressed by the Court, it is hereby denied.

Accordingly, the defendant's motion is GRANTED on renewal, as stated herein.

RD America is directed to serve a copy of this decision and order with notice of entry upon all parties within thirty (30) days of entry of this order, and to upload proof of service onto the NYSCEF system.

This constitutes the decision and order of this Court.

Dated: December 5, 2025

Bronx, New York

Hon. Kim Adair Wilson, J.S.C.